Johnson v. McFry

• Decision Date: 08 April 1915
• Docket Number: 321
• Citation: 68 So. 716,14 Ala.App. 170
• Parties: JOHNSON et al. v. McFRY.
• Court: Alabama Court of Appeals

68 So. 716

14 Ala.App. 170

JOHNSON et al. v. McFRY.

No. 321

Court of Appeals of Alabama

April 8, 1915

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by J.E. Johnson and others against Jim McFry. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

See also, 68 So. 718.

Charles F. Douglass, of Anniston, for appellants.

Blackwell & Agee, of Anniston, for appellee.

THOMAS J.

The only assignments of error made relate to the conclusion and judgment of the trial court on a special finding of facts made by it, sitting, by agreement of the parties, without a jury. Code, § 5359 et seq.

No request for a special finding of the facts was made by either party, but the court, in the exercise of its discretion, made ex mero motu such a finding, which is set out in the bill of exceptions; and on appeal--its conclusion and judgment on the facts so specially found having been assigned as error--in becomes the duty of this court to examine and determine, in the same way as if there had been a request for such finding whether or not such facts are sufficient to support the judgment. Sayre v. Weil, 94 Ala. 470, 10 So. 546, 15 L.R.A. 544; Brock v. L. & N.R.R. Co., 114 Ala. 432 21 So. 994; Code, § 5361. There is no merit in the suggestion of appellee that the finding does not constitute a special finding. Lanford & Co. v. Mathis, 9 Ala.App. 434, 62 So. 967.

The action was by the appellant Johnson against appellee, McFry, and the complaint contained a count in trover for the alleged conversion by McFry of an undivided half interest in a certain bale of cotton that had been raised in the year 1913 on his place by one Brown, the one-half interest in which the plaintiff Johnson claimed under a mortgage executed to him by said Brown on February 22, 1913, covering the crops to be raised by said Brown during that year on the said premises of the defendant, McFry. The agreement between said Brown and McFry, under which said cotton was raised, the court found to be as follows (quoting from the special finding of facts), to wit:

"During and for the year 1913 McFry and Brown made an agreement for the cultivation of a tract of land in Calhoun county, Ala., under which McFry agreed to furnish the land and a mule for the crop, and Brown agreed to furnish the labor, the crop to be divided equally. It was customary to use commercial fertilizers for making crops, and, under a contract such as that above described between McFry and Brown, it was customary for each party to bear half of the cost of the fertilizer from the respective shares of the crop. Some time after the above agreement for making a crop was had McFry and Brown had an understanding or agreement that 20 sacks of guano should be used in the crop, and McFry made arrangements to purchase same, and it was purchased by McFry on the latter's credit. Brown then went to the merchant and hauled the guano, and used it in the crop. Then there was no understanding that each was to furnish half of the fertilizer, but there was an understanding that it was to be paid for out of the proceeds of the crop at the equal expense of both parties."

From these facts so found by the court it concluded that the relationship between McFry and Brown was one of hirer and hireling, under section 4743 of the Code, which, if true, vested in McFry the legal title to the crops, and in Brown only a lien upon them for the value of the portion of the crop to which he was entitled. Code, § 4743.

In this conclusion as to the relationship between the parties we are of opinion that the court erred. The agreement between McFry and Brown that the guano should be paid for out of the crop before any division between them of the crop was tantamount to an agreement to divide equally between them the cost of the guano; and, even if the relationship between them under the contract as first made was that of hirer and hireling (which, it would seem, is not the case, however, since under that contract McFry agreed to furnish, not the land and team, which the statute requires as essential to that relationship, but only the land and a mule [Tate v. Cody-Henderson Co., 11 Ala.App. 350, 66 So. 837]), yet that relationship, if before existing, was certainly changed, before the crops ever came into existence, by the subsequent modification of that contract in the new agreement to share equally the cost of the guano to be used. Williams v. Lay, 184 Ala. 54, 63 So. 466; Hendricks v. Clemmons, 147 Ala. 590, 41 So. 306; Haynes Mercantile Co. v. Bell, 163 Ala. 326, 50 So. 311. See, also, Johnson v. McFry, 68 So. 718.

Parties are at liberty to alter or modify at pleasure the terms of a written contract between them, so long as it is executory with or without writing, and without any new consideration for the change other than that of mutual assent. Hertz v. Montgomery Publishing Co., 9 Ala.App. 186, 187, 62 So. 564, and cases there cited. We are clear that the relationship between the parties was not that of hirer and hireling, under section 4743 of the Code, nor that of landlord and tenant, under section 4742 of the Code, but was that of tenants in common of the crop, under ...