H. & C. Newman, Inc. v. Delta Grocery & Cotton Co.

• Citation: 144 Miss. 877,110 So. 686
• Decision Date: 06 December 1926
• Docket Number: 25841
• Parties: H. & C. NEWMAN, INC., v. DELTA GROCERY & COTTON CO. [*]
• Court: United States State Supreme Court of Mississippi

110 So. 686

144 Miss. 877

H. & C. NEWMAN, INC., v. DELTA GROCERY & COTTON CO. ^[*]

No. 25841

Supreme Court of Mississippi

December 6, 1926

Suggestion of Error Overruled Jan. 10, 1927.

(In Banc. Suggestion of Error Overruled Jan. 10, 1927.)

1. LANDLORD AND TENANT. Against one advancing money to tenant on landlord waiving lien on crops, landlord held estopped to contend tenant had no interest in subtenant's crop.

Defendant by waiver of all liens on crops raised by or for C. on lands rented to him by defendant, having induced plaintiff to extend credit to C., and led plaintiff to believe that he would acquire a valid deed of trust paramount to defendant's lien on all of C.'s interest in crops by whomsoever produced on such lands, was estopped to contend that, by C.'s deed of trust to plaintiff, plaintiff acquired no lien on the crop raised by C.'s subtenant because of C.'s prior assignment to defendant, unknown to plaintiff, of subtenant's rent note.

2. MONEY RECEIVED. On defendant receiving money by right belonging to plaintiff, plaintiff may recover it as money had and received.

Where defendant received payment of note with proceeds of crop, which, by reason of mortgage of insolvent and estoppel of defendant, by right belonged to plaintiff, plaintiff could recover the money of defendant as money had and received; the law implying defendant's promise to pay it to plaintiff.

3. APPEAL AND ERROR. Statement of appellate court, in case before it on pleadings, on question not presented by pleadings, held not law of case.

Where case was before appellate court on the pleadings alone, its statement on a question not presented by the pleadings, and so not involved in the case, was dictum, does not constitute law of the case.

ETHRIDGE, J., dissenting.

HON. C. L. LOMAX, Chancellor.

APPEAL from chancery court of Coahoma county, HON. C. L. LOMAX, Chancellor.

Suit by the Delta Grocery & Cotton Company against H. & C. Newman, Inc. Decree for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Maynard, Fitzgerald & Venable, for appellant.

Collier by giving a deed of trust could not bind the crop of Mix, the sub-tenant. For a discussion of this see brief on former decision in this case. It seems to us to be elementary, and this the court has set forth in its opinion, on demurrer, that the complainants in the court below in order to recover must show some sort of right to the note of Mix. The facts constituting this right they must plead. Being required to plead, they must bear the burden of proof.

The waiver executed by H. & C. Newman does not mention the note, but simply waives all liens that H. & C. Newman may have on any cotton raised on the leased premises. H. & C. Newman have never undertaken to enforce any liens on any cotton. The Delta Grocery & Cotton Company, through their deed of trust, took no liens on the cotton of Mix.

The burden of proof was on complainant to prove that the Mix note was in the possession of Collier at the time the deed of trust was executed and at the time the waiver was executed.

The complainant has not met this burden. In fact, the note was in the possession and ownership of H. & C. Newman, prior either to the execution of the waiver or the deed of trust.

As we see it, the proof is all one way and indeed it was admitted in the court below on the trial, and as we have said, the decision of the chancellor grew out of a misapprehension of the meaning of the court, the chancellor not having the response to the suggestion of error before him on the trial.

Brewer & Brewer, for appellee.

We are not contending that the appellant is liable to the appellee in an action of conversion, or on any other ground except in an action for money had and received which in equity and good conscience belonged to the appellee.

Since the case was before this court on the former appeal, the facts developed at the trial in the court below show that at the time the waiver was executed by the appellant in favor of the appellee, for the purpose of inducing appellee to supply the said Arthur Collier, the rent note, on which the five hundred dollars in question was paid, had at that time already been transferred and assigned to the appellant. Hence, it further develops that at the time the said Arthur Collier executed his trust deed in favor of the appellee on all crops of cotton grown, raised or produced by or for him on the lands in question, his landlord's lien against his sub-tenant for said five hundred dollars had already been assigned to the appellant, and the appellant withheld this knowledge from the appellee at the time the appellant executed and delivered the waiver of its lien in favor of the appellee for the purpose of inducing the appellee to advance the said Arthur Collier money and supplies during said year. In this connection see Dreyfus v. Gage, 84 Miss. 22; Chism v. Alcorn, 71 Miss. 506.

We are not here suing the appellant to make it pay the account owing by Arthur Collier to the appellee, as was sought to be done in the last case cited, but we have brought our action for money had and received by the appellant which in equity and good conscience belonged to the appellee.

That an action for money had and received may be maintained in the absence of privity of contract, there can be no doubt. Moses v. McFerlin, 2 Burr. (Eng.) 1005; State v. Johnsburg, 59 Vt. 337, 10 A. 531; R. R. Co. v. Burke, 102 Va. 643, 47 S.E. 824; Roberts v. Ely, 113 N.Y. 131; Allen v. Mendelsohn & Co., 93 So. 416; Farmers Bank & Trust Co. v. Shut & Keihan, 68 So. 363.

The decree of the lower court should be affirmed.

ANDERSON, J. ETHRIDGE, J.

OPINION

ANDERSON, J.

The appellee, Delta Grocery & Cotton Company, a corporation under the laws of this state, filed its bill in the chancery court of Coahoma county against the appellant, H. & C. Newman, a corporation under the laws of the state of Louisiana, to recover the sum of five hundred dollars with interest. There was a trial on the pleadings and proofs resulting in a decree in favor of the appellee for the amount sued for, with interest. From that decree, appellant prosecutes this appeal.

This is the second appearance of this case in this court. The report of the case on the former appeal will be found in 138 Miss. 683, 696, 103 So. 373, and 104 So. 157. The first appeal was prosecuted to settle the principles of the cause. On that appeal there was an original opinion of the court, followed by an opinion in response to a suggestion of error. The following is deemed a sufficient statement of the case as is now before the court:

The appellant owned two tracts of farm land in Coahoma county, one known as the Ward-Lake place, and the other as the Hendrick's place. The appellant leased both of these places to Arthur Collier for the years 1923 to 1925, inclusive, for the rent of which Collier agreed to pay the appellant the sum of two thousand dollars per year, due and payable November 1st of each of said years, and gave his three notes to appellant accordingly. After leasing the land from appellant, Arthur Collier subleased the Ward-Lake place to Will Mix for the year 1923 for the sum of five hundred dollars, for which sum Mix gave his note to Collier, payable on November 1, 1923. Mix's note was dated February 21, 1923. Collier thereupon delivered the note of Mix to appellant, with this indorsement below Mix's signature to the note, which indorsement was signed by Collier: "For rent Ward-Lake place per contract of which this is a part." Collier was unable to supply his tenants on these lands for the year 1923 to enable them to cultivate the lands. This fact was brought to the knowledge of the appellant, and, in order to induce appellee to furnish Collier the necessary supplies for that purpose, appellant executed and delivered to appellee a written waiver in the following language:

"Know all men by these presents that whereas, heretofore, to-wit on the 6th day of November, 1922, H. & C. Newman, Inc. (a corporation chartered and existing under the laws of the state of Louisiana), leased and demised to Arthur Collier, of Farrell, Miss., certain land belonging to the said H. & C. Newman, Inc., situated in Coahoma county, Miss., known as the Ward Lake place and the Hendrick's home place, particularly described in a lease agreement dated the said 6th day of November, 1922, executed by the said H. & C. Newman, Inc., and the said Arthur Collier, to which reference is hereby made for full particulars; and whereas, the said Arthur Collier desires to obtain advances of money and supplies with which to make a crop on said land during the year 1923: Now, therefore, in order to enable the said Arthur Collier to obtain such advances of money and supplies, in the amount of not exceeding twelve hundred dollars ($1,200), during the year 1923, the said H. & C. Newman, Inc., hereby waives, to the extent of twelve hundred dollars ($1,200), but no further, in favor of any person, firm or corporation furnishing to the said Arthur Collier, during the said year 1923, for use on the lands aforesaid, money or supplies not exceeding in the aggregate the sum of twelve hundred dollars ($1,200), all liens as landlord or otherwise to which the said H. & C. Newman, Inc., may be entitled, on any and all crops grown, raised, or produced by or for the said Arthur Collier on the lands aforesaid during the said year 1923. It is distinctly understood and agreed, however, that except as to the sum of twelve hundred dollars ($1,200) in money or supplies to be furnished the said Arthur Collier, as aforesaid, for use on the lands aforesaid, during the year 1923, as aforesaid, said H. & C. Newman, Inc., hereby reserves, retains, and does not in any manner waive, release, or subordinate any...