Katz v. Goldman

• Decision Date: 16 November 1901
• Parties: KATZ v. GOLDMAN
• Court: Arkansas Supreme Court

65 S.W. 432

69 Ark. 637

KATZ v. GOLDMAN

Supreme Court of Arkansas

November 16, 1901

Appeal from Arkansas Circuit Court GEORGE M. CHAPLINE, Judge.

Judgment affirmed.

H. A Parker and J. R. Parker, for appellants.

The appeal was properly taken. Sec. 12, acts of 1887, pp. 74-79. This case is unlike the case in 33 Ark. 663. An application for an order is a motion. Sand. & H. Dig., § 5889; 41 Cal. 650; 3 Estee, Pl. & Forms, 146; 15 Am. & Eng. Enc. Law 892. An affidavit must be filed to get attachment. 47 Ark 31; 50 Ark. 444. The county and common pleas court is a superior court. 53 Ark. 476.

J. P. Lee and M. J. Manning, for appellees.

A principal is bound by the acts of his agent within the scope of his apparent power. 49 Ark. 320; 46 Ark. 214; 42 Ark. 97; 37 Ark. 47; 29 Ark. 99; 25 Ark. 261. Moses Katz was the general agent of his wife, and his false representations to Goldman & Co., are binding on her. 47 Ark. 148. No lien could be claimed by her in excess of that so represented to appellees. 60 Ark. 357; 31 Ark. 131; 52 Ark. 152; 1 Jones, Liens, § 579.

OPINION

BATTLE, J.

Mrs. Ernestine Katz leased a tract of land to Wesley Cartwright for the year 1894 and the lessee agreed to pay therefor $ 150, and she hired to him for the same year four mules and one wagon for $ 100. On the 1st day of November, 1894, she instituted an action against Cartwright to recover $ 193.38, the balance alleged to be due on the $ 150, $ 100, and $ 49 which she claims to be due for supplies furnished by her in 1894; admitting that she had received five bales of cotton, of the value of $ 107.62, in part payment of his indebtedness. At the same time she sued out an order of attachment against the crops raised on the land in 1894, and caused it be levied upon 3,103 pounds of seed cotton and 175 bushels of corn of such crops and the cotton and corn still growing upon the land. Goldman & Co. filed in the action a complaint in which they claimed the property attached by virtue of a mortgage executed to them by Cartwright on the 5th day of March, 1894, to secure the payment of money that would be due them for supplies to be furnished to enable him to raise the crops attached. During the pendency of the action, Mrs. Katz died, leaving a last will and testament, by which she devised and bequeathed all her property of every description to her husband, Moses Katz, except $ 20, which she bequeathed to her adopted children. The action was revived in the name of Moses Katz, and he managed by some means to get possession of the property levied upon, and converted it to his own use.

The lease of the land, the hire of the mules and wagon, and the execution of the mortgage to Goldman & Company are undisputed. The only question before the circuit court for decision was, was the plaintiff estopped from disputing the priority and validity of the mortgage and the right of Goldman & Company to be paid the amount due them for supplies out of the proceeds of the sale of the crops before any amount, except $ 50 for rent, should be paid to plaintiff? Evidence was adduced in the trial of the action which tended to prove the following facts: Moses Katz was the husband of Mrs. Katz, and had as complete control and management of her property and business as he had of his own. Cartwright was indebted to her. He was unable to make a crop without assistance in the way of supplies. She could not furnish him. Moses Katz, as her agent, sent him to Goldman & Company for the purpose of securing their assistance, and directed him to say to them that he had four head of cattle and two horses, and that his rent for 1894 would be only $ 50, and that, if they would agree to furnish him with supplies, he would mortgage to them his stock and his crops of 1894 to secure them in the payment of any debt he would owe for the supplies furnished according to the agreement. He did as he was directed. They relied and acted upon his representations, accepted his proposition, took a mortgage on his stock and crops of 1894, and furnished him with supplies, as they agreed to do, of the aggregate value of $ 246.52. Cartwright paid the plaintiff, in cotton raised on the land he leased from her at least $ 145.42.

According to this evidence, Moses Katz was authorized to do as he did. Cartwright was indebted to Mrs. Katz, and the arrangement made with Goldman & Company was the most practicable means that could have been adopted to collect the money that Cartwright was or would be owing her, he being poor and unable to raise a crop without assistance in the way of supplies, and she being without the means to furnish them. The effect of sending Cartwright to Goldman & Company and the directions to him was to authorize him to execute a mortgage to them, prior and paramount to her lien for rent and supplies, except as to the $ 50. Cartwright having executed the mortgage, and Goldman & Company having accepted his representations as true, and, believing they were true, furnished the supplies, without which Cartwright could not have raised the crops of 1894, Moses Katz and his wife are and were estopped from setting up her lien as superior to the mortgage, the $ 50 having been paid.

But the evidence referred to was contradicted by other evidence, and a question of fact was thereby raised, and it was submitted to the jury for decision upon the following instructions, which were given at the request of Goldman & Company.

"1. The acts and statements of an agent pertaining to the business of his principal are the acts and statements of the principal, if made within the scope of the agency, and in law are as binding upon the principal as if made by him.

"2. The jury are instructed that if they believe from the evidence that Moses Katz was the agent of Ernestine Katz and, as such agent, and as an inducement to have Goldman & Company extend credit to the defendant, Wesley Cartwright stated that he, the said Cartwright, as a tenant of ...