Jarrell-Evans Dry Goods Co. v. Allen

• Decision Date: 07 April 1921
• Docket Number: (No. 1201.)
• Citation: Jarrell-Evans Dry Goods Co. v. Allen, 229 S.W. 920 (Tex. App. 1921)
• Parties: JARRELL-EVANS DRY GOODS CO. v. ALLEN et al.
• Court: Texas Court of Appeals

229 S.W. 920

JARRELL-EVANS DRY GOODS CO. v. ALLEN et al.

(No. 1201.)

Court of Civil Appeals of Texas. El Paso.

April 7, 1921.

Appeal from Haskell County Court; Jas. P. Kinnard, Judge.

Action by the Jarrell-Evans Dry Goods Company against G. H. Smithee, W. C. Allen, and others. From a judgment against defendant Smithee, but in favor of the defendants Allen and Grissom, plaintiff appeals. Affirmed in part, and reversed and rendered in part.

H. R. Jones, of Corpus Christi, for appellant.

McConnell & Grissom, of Haskell, and Harry Tom King, of Abilene, for appellees.

WALTHALL, J.

This suit was brought by appellant, Jarrell-Evans Dry Goods Company, a private corporation, to recover, as landlord, against G. H. Smithee, as tenant, a balance due appellant for money furnished him to enable him to make a crop on appellant's land in Haskell county for the year 1919, and for a balance due as rent for that year, and for the foreclosure of appellant's landlord's lien on two bales of cotton and cotton seed, and against W. C. Allen, C. D. Grissom, Hardy Grissom, and Clyde Grissom to recover of them the value of said two bales of cotton and the cotton seed, alleged to have been unlawfully and wrongfully seized under execution upon a judgment against Smithee and by appellees converted to their own use.

Appellant alleged that it was the owner of the 197.10 acres of land in Haskell county. It rented said land to Smithee for the year 1919 for farming purposes; the rental agreement being that Smithee should pay to appellant as rent one-fourth of all cotton and cotton seed produced or raised on said land during that year. To enable Smithee to make a crop on said land it was necessary for appellant to furnish and it did furnish to Smithee money for said purpose. There is due appellant by Smithee for money so furnished the sum of $461.40 besides rent of the value of $270.95, which was past due and unpaid. On November 8, 1919, Smithee had ginned and prepared for market two bales of lint cotton and 900 pounds of cotton seed. One-fourth of said cotton and cotton seed belonged to appellant for rent, and it claimed to have a landlord's lien on said cotton and cotton seed to secure it in the payment of its rent and money furnished. On the 8th day of November, 1919, appellees Grissom caused defendant Allen, as sheriff, to levy a writ of execution issued out of the justice court, in a cause in which appellees Grissom are plaintiffs and Smithee is defendant, upon said cotton and cotton seed, and caused same to be sold under said execution and levy, took possession of said property, and converted it to their own use and benefit. Appellant prayed for judgment for its rents, debts, interest, damages, costs, and foreclosure of its lien and for the value of said property.

Appellees answered by general demurrer, general denial, by special answer pleaded their judgment against Smithee, the issuance of the execution as above and the levy upon the property, advertisement and sale by the sheriff, Allen, purchase by appellees Grissom, and the application of the proceeds as a credit upon said judgment. By reason of said facts appellees pleaded an abandonment and waiver by appellant and that it is now estopped from asserting any right or title to said property or landlord's lien thereon, or right to subject same to any indebtedness of appellant against Smithee.

Appellees Grissom deny that the money advancements were secured by any landlord's lien upon the said property; deny their conversion of the property by the levy of the execution and sale thereunder. They allege that for several years, including 1919, it had been the custom of dealing between appellant and Smithee that Smithee should account to appellant for rents and advances made to him by payment to appellant of money, and not through or by virtue of any landlord's lien; that Smithee had the free consent of appellant to sell the products of said farm at any time he chose to do so and without consulting appellant, and that he did sell practically all of said products in 1919; that appellant relied upon Smithee to pay the rents and advances by making deposits in certain banks, and waived all rights to subject the products of his farm to the payment of said rents, and only relied and depended on Smithee to pay rents and advances out of the proceeds from the sales by Smithee of said products, and that appellant did not depend upon the cotton involved in this controversy; that by reason of which appellees Grissom insist that appellant has no lien on said cotton, and has no right to pursue same in the hands of any of appellees, and no right to a judgment for the value of said cotton or for its conversion. Smithee admitted his indebtedness to appellant as alleged by appellant.

The facts are practically uncontroverted, and, so far as necessary to a decision of this case, they are substantially as follows: Appellant owned the land, and for the years 1916, 1917, 1918, and 1919 rented same to Smithee for the purpose of farming. For the year 1919 appellant was to furnish the seed wheat and receive as rent one-half of the wheat raised. For cotton and feed raised appellant was to receive as rent one-fourth of the cotton and cotton seed, and one-third of the feed. For the year 1919 appellant furnished Smithee $710 to make the crop, and at the time of the seizure of the two bales of cotton and cotton seed Smithee owed appellant a balance for money furnished of $461.40 to make a crop for 1919 beside rent of the value of $270.95. It had been the custom and arrangement between appellant and Smithee for the years preceding 1919, and including the year 1919, not to pay or deliver the crops in kind in discharge of the rent, but that Smithee would sell the cotton in the open market and deposit the money due appellant in the bank in settlement of the rent and money advances by appellant. For the year 1919 Smithee had not delivered to appellant any cotton or cotton seed. In 1919 Smithee deposited in the bank in his own name for rent and advances, the exact amount not made clear, but of which Smithee, in testifying, said:

"I have deposited over $400 to pay this account. * * * I have not deposited more than money enough in the bank under my agreement to pay all I owe them for rent for 1919 and for advances. I never figured it exactly how much I lack. $453.82 still there. One-fourth of $527.79 is to come out of that rent cotton, and $22.35 for rent seed is to be added to the one-fourth. At the time these two bales of cotton was seized it was selling for from 42 to 43½ cents. The cotton and seed was worth more than $460. * * * The money I had in the bank would offset the value of these two bales of cotton. * * * I had four more bales in the field. * * * I sold it in the field. I paid debts with the money. * * * I paid the rent out of what I sold. * * * I did not pay them what I owed for advances. The money in the bank and the cotton seized was more than enough to pay them. * * * I did not sell this cotton. Sure I sold cotton and didn't put the money in the bank. If I had, my other creditors would have gone to the bad. * * * I reported to my landlord that I had sold that cotton. I believe I told my landlord how much I got for that cotton; I am not sure. He got his rent out of it just the same. I think there is $453 in the bank subject to the payment of the claim sued on in this case, less the rent. The money in the bank was placed there to my credit and would stay that way until I transferred their part to them. * * * This summer when I sold the wheat it was all sold in my name, over $1,100 of wheat, brought up and sold and all placed to my credit, and it was there for several days, which was very careless for me to do. I had no understanding that it would be deposited in my name, but they trusted me to see that they got their rent. That wheat money is like this cotton money; I just neglected it until I was up there and it was convenient for me to settle...