Judd v. Delta Grocery & Cotton Co

• Decision Date: 31 December 1923
• Docket Number: 23123
• Citation: 133 Miss. 866,98 So. 243
• Parties: JUDD v. DELTA GROCERY & COTTON CO
• Court: Mississippi Supreme Court

98 So. 243

133 Miss. 866

JUDD v. DELTA GROCERY & COTTON CO

No. 23123

Supreme Court of Mississippi

December 31, 1923

(In Banc.) January 1, 1920

LANDLORD AND TENANT. Landlord held estopped to assert landlord's lien on crops.

Where the testimony shows that a tenant rented a plantation from the landlord for an annual money rental, and that the tenant with the knowledge and consent of the landlord each year sold the crops, the landlord by this course of dealing constituted the tenant his agent for the sale of these crops, and is estopped to assert the landlord's lien against an innocent purchaser or a broker who sold the crop at the request of the tenant, and accounted to the tenant for the proceeds thereof.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Coahoma county, HON. GREEK L. RICE Judge.

Suit by F. E. Judd against the Delta Grocery & Cotton Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Judgment affirmed.

Maynard, Fitzgerald & Venable, for appellant.

There is no contention in this case that the plaintiff owned the Rucks Plantation, or that the cotton amounting to one hundred ninety-four bales, raised on the Rucks Plantation was disposed of by the Delta Grocery and Cotton Company, nor is there any contention that the rent of eight thousand dollars due by E. W. Judd to his father, F. E. Judd, has not been paid. But the sole point that seems to be made by the defendant is that E. W. Judd, by his course of dealing with his son, has waived his rent to the Delta Grocery and Cotton Company for the supplies. Also, it is intimated that the Delta Grocery and Cotton Company did not convert the cotton but sold it as factors. This point we will take up first.

In the case of Peets & Norman v. Baker, 95 Miss. 576, 48 So. 898, it was held by this court that: "Where a tenant without having paid his rent delivered his crop of tomatoes to merchants with whom he had an open account, with the understanding they were to ship them out of the state and credit the proceeds of the sale to his account, which was done, it constituted as against the landlord a conversion of the tomatoes in this state, rendering the merchant liable to the extent of the landlord's lien (Code 1906, section 2832) for the rent which did not exceed the proceeds of the crop."

Of course the amount of cotton received by the Delta Grocery and Cotton Company exceeded twenty-five thousand dollars and the rent was only eight thousand dollars. It is immaterial whether a price was agreed upon at the time of the delivery of the goods to the merchant. They having been received for sale, proceeds to be applied to the tenant's account, the only thing which remained to be done was to receive the returns of the sale and apply the same. This amounts to a conversion as against the landlord. Peets v. Baker, supra.

"The delivery of goods by a debtor to a creditor in payment of his debt constitutes a sale and not a pledge which is a bailment to secure the payment of a debt or the performance or some other act in which the pledgor only acquires a special property in the thing pledged." Trenholm v. Miles, 102 Miss. 835, 59 So. 930.

And in the same case: "When personal property is delivered as security, the transaction is a pledge. But if goods are delivered to a creditor in payment of the debt, the transaction has the effect of a sale."

The case of W. L. Robinson & Company v. Weathersby, 101 Miss. 724, 57 So. 983 is ample authority as to the fallacy of any contention on the part of the appellee to the effect that the plaintiff, F. E. Judd, and his renter, E. W. Judd, occupied the relation of vendor and purchaser, or agent and principal, and in that case also it was shown that the renter occupied the land under a contract of purchase as is claimed in this case, and in addition that there was no duty on the part of the landlord to notify the merchant that he was crediting the tenant at his own risk.

In the case of Eason v. Johnson, 69 Miss. 371, 12 So. 446, this court said: "The right of the landlord to recover from one to whom the agricultural products grown on the premises have been sold by the tenant, is not affected by the want of knowledge by the purchaser of the fact that the rent is due and unpaid. The lien exists by virtue of a positive law, and the rule of caveat emptor applies to all who purchase from the tenant."

"Neither ignorance of the tenancy or false statement of the tenant as to his authority in the premises can defeat the lien of the landlord on the agricultural products." Warren v. Jones, 70 Miss. 202, 14 So. 25.

It is attempted in this case to set up an estoppel but--"As a corollary to the proposition that the party setting up an estoppel must have acted in reliance upon the conduct or representation of the party sought to be estopped, it is essential as a general rule that the former shall not only have been destitute of knowledge as to the real facts of the matter in controversy, but should have been without convenient or ready means of acquiring such information." 21 C. J. page 1129.

It is well known that a public record is an available means of knowledge, and one who does not take advantage of this by inspection cannot claim an estoppel.

Mr. Bouldin, the secretary and treasurer of the Delta Grocery and Cotton Company, attempted very lamely to blame F. E. Judd, the owner of the plantation, for the condition of affairs and stated (which however was excluded by the court) that in 1915 or 1917 F. E. Judd was in his office and introduced him to his son, E. W. Judd, and told him he was coming down to take charge of the place. But even Mr. Bouldin does not say that any arrangements were ever made with regard to furnishing Mr. Judd, nor had the Delta Grocery and Cotton Company ever furnished Judd before the year 1920. So, there certainly was no course of dealing between any of the parties.

At the conclusion of the trial of this cause, the learned judge in the court below gave a peremptory instruction for the plaintiff, which was correct. A motion for new trial was made and the judge reversed his ruling and gave a peremptory instruction for the defendant, thereafter overruling the motion for new trial by the plaintiff, and the plaintiff now appeals this case.

The reason for the change of mind of the judge in the lower court was this, and this only. Three cases were read to his honor being the following: Phillips v. Thomas, 91 So. 420; Powell v. Tomlinson, 92 So. 226; Scott & Garrett v. Green River Lumber Company, 116 Miss. 524, 77 So. 309.

In the motion for new trial the following "new evidence" was presented to the court, to-wit: An agreement of counsel was entered into showing that on January 1, 1920, Elmer W. Judd, the renter, was the owner of the west half of the northwest quarter of section 32, township 26, range 3 west, in Coahoma county, Mississippi, and that there was no encumbrance on said land. And by the said agreement of counsel it was shown that Elmer W. Judd intended to give the Delta Grocery and Cotton Company a deed of trust on the said west half of the northwest quarter of said section 32, but instead conveyed the west half of the northwest quarter of section 31 by mistake.

With this "new evidence," it was argued to the court that under the three cases above cited, it was the duty of F. E. Judd to attach and distrain for rent all of the property of the renter, E. W. Judd, before going upon the Delta Grocery and Cotton Company. Of course, it is plain to this court that neither Elmer Judd nor his father knew that he had not conveyed the eighty acres of land that he owned to the Delta Grocery and Cotton Company, as well as to the Planters Bank, and Mr. F. E. Judd himself states on oath in the court that he investigated and did not find that E. W. Judd had any property of any kind, but that he, E. W. Judd, told him, his father, that it was all under mortgage and that he had no property. E. W. Judd went into bankruptcy shortly after January 1, 1921.

A landlord has no lien on the property of the tenant other than agricultural products. Richardson v. McLaurin, 69 Miss. 70, 12 So. 264; White v. Miazza-Woods Construction Company, 122 Miss. 213, 84 So. 181.

In the first place, the case of Scott & Garrett v. Green River Lumber Company, was a case wherein the landlord, Green River Lumber Company, filed suit against Scott and Garrett for three hundred forty-six dollars, and thirty-two cents, being the alleged amount of rent due by one J. S. Norris to the Green River Lumber Company, Scott and Garrett having purchased products grown upon the leased premises. Scott and Garrett contended that it was the duty of the Green River Lumber Company to apply any money which they had in their hands to the indebtedness of Norris and that the Green River Lumber Company had no right to pay Norris a large amount of money and then sue them, Scott and Garrett, for the rent.

The case of Powell v. Tomlinson, has no application to the case at bar. In that case the landlord had security by deed of trust, and did not foreclose the same but proceeded against converters of the cotton, not of the tenant himself, but a sub-tenant.

Cutrer, Smith & Cutrer and W. T. Covington, Jr., for appellee.

The undisputed testimony in this case brings us within the rule laid down in the case of Phillips v. Thomas, 91 So 420, wherein this court recently held that where a landlord in the course of dealing between himself and his tenant over a long period of time, permits the tenant, with his knowledge, to dispose of the cotton grown on the leased premises, this action constitutes the tenant the sales agent of the landlord. In such case, where the tenant fails to execute the trust reposed in him, and fails to pay the rent, the landlord must...