Lipscomb v. Delong

• Decision Date: 26 March 1923
• Docket Number: 253
• Citation: 249 S.W. 14,158 Ark. 24
• Parties: LIPSCOMB v. DELONG
• Court: Arkansas Supreme Court

249 S.W. 14

158 Ark. 24

LIPSCOMB v. DELONG

No. 253

Supreme Court of Arkansas

March 26, 1923

Appeal from Conway Circuit Court; A. B. Priddy, Judge; affirmed.

STATEMENT OF FACTS.

J. R Lipscomb, administrator of the estate of Will McArthur deceased, sued W. E. DeLong to recover damages for the wrongful conversion of twenty-two bales of cotton, of the value of $ 2,218.92.

DeLong denied the allegations of the complaint, and, by way of cross-complaint, alleged that the estate of Will McArthur deceased, was indebted to him in the sum of $ 1,204.89 for supplies furnished as tenant of DeLong.

Mrs Sarah McArthur, the widow of Will McArthur, deceased, was a witness for the plaintiff. According to her testimony, her husband died on October 25, 1920, and Charley McArthur looked after gathering the crop. She did not give W. E. DeLong permission to sell the cotton. She admitted that her husband was indebted to DeLong for supplies furnished him with which to work the crop. Her husband and DeLong owned the land on which the crop was raised, as tenants in common.

According to the testimony of the administrator, he went to DeLong and demanded settlement of the cotton on the 24th day of September, 1921. DeLong refused to deliver the cotton to him or to pay for it. Cotton was worth 22 and 23 cents per pound at that time. J. R. Lipscomb was appointed administrator of the estate of Will McArthur, deceased, on the 22nd day of September, 1921. There was no administrator of said estate before that time.

W. E DeLong was a witness for himself. According to his testimony, Will McArthur owed him $ 1,992.39 for supplies furnished with which to make the crop on the land in question at the time he died. After the death of her husband, Mrs. McArthur turned over the twenty-two bales of cotton to DeLong to handle as best he could. DeLong was to receive one-third of the cotton for rent and enough of the balance to pay for the supplies furnished. The cotton was first hauled to DeLong's house and left there for the purpose of keeping it in a dry place. DeLong subsequently removed it to his warehouse, and deposited it there in his own name. He sold the cotton on July 10 for ten cents per pound, which was the highest market price at that time.

Other witnesses corroborated the testimony of DeLong to the effect that he sold the cotton for the highest market price.

DeLong then made up a statement of his account with the estate of Will McArthur, deceased, on this basis, and from this statement there was a balance due him of $ 601.02. Subsequently he rendered another statement in which he claimed a balance due him of $ 787.48.

Mrs. McArthur denies that she gave DeLong permission to sell the cotton, and for this reason the plaintiff demands that he account for the price which it could have been sold for on the 24th of September, 1921.

The court held that the sale by DeLong of the cotton on the 10th day of July, 1921, constituted a conversion of it by him, and that he was accountable to the estate of W. A. McArthur, deceased, for its market value at that time.

DeLong accounted to the McArthur estate on this basis, and his own statement showed a balance of $ 601.02 owing him. The case was withdrawn from the jury by the court, and judgment was rendered in DeLong's favor for that amount. The plaintiff has appealed.

Judgment affirmed.

Edward Gordon, for appellant.

Instructions 1 and 2, declaring as a matter of law that appellee was only required to account for the market price of the cotton when he sold it, were wrong, since he converted it when he removed it in violation of his obligation as bailee. No right of action accrues against a bailee before a refusal to deliver the property when demanded. McLain v. Ruffman, 30 Ark. 428; Wilson v. Curry, 149 Ala. 368, 42 So. 753; Louisville v. Elec. Ry. Co. 141 Ala. 671, 37 So. 659; Kink v. Franklin, 31 So. 467; Moore v. Monroe Refrigerator Co., 29 So. 447; Salida Bldg. Assn. v. Davis, 64 P. 1046; Maynahan v. Prentice, 52 Pac. 94; Semons v. Adams, 79 Conn. 81, 63 A. 661; Seeger v. Lynch, 72 Ill. 498; James v. Gregg, 17 Ind. 84; Brewer v. Swecker, 116 N.W. 704; Auld v. Butcher, 22 Kan. 400. Same rule obtains in other States and U. S. Sup. Court. If rule in foregoing cases not followed, then the conversion took place when appellee bailee put the cotton in the Morrilton warehouse in his own name, and the market price was 17 cents. Prazzie v. Harmon, 79 Kan. 855, 98 P. 771; Wagoner v. Marple, 10 Texas Civ. App. 505, 31 S.W. 631, 38 Cyc. 2033; Dixie v. Harrison, 163 Ala. 304, 50 So. 284; Badger v. Batavia Paper Mfg. Co., 70 Ill. 302; Follett v. Edwards, 30 Ill.App. 386; Purcell Cotton Seed Oil Mills v. Bell, 7 Ind.Terr. 717, 104 S.W. 944; Porter v. Foster, 20 Me. 391, 37 Am. Dec. 59; Gilmore v. Newton, 9 Allen 171, 85 Am. Dec. 749; Andrews v. Shattuck, 32 Barb. 396; Graham v. Purcell, 126 N. Y. App. 407, 110 N.Y.S. 813; Schechter v. Watson, 35 Misc. 43, 70 N.Y.S. 1; Corotinsky v. Cooper, 26 Misc. 138, 55 N.Y.S. 970; Riford v. Montgomery, 7 Vt. 411; 47 Century Digest, Trover & Conversion.

Strait & Strait, for appellee.

The only question here is whether the trial court correctly held that the cotton was converted when appellee sold it, and must account for its value at that time, and it unquestionably did. Peterson v. Gresham, 25 Ark. 386. The instructions correctly declared this law. American Soda Fountain Co. v. Futrall, 73 Ark. 464; Jefferson v. Hale, Admr. 31 Ark. 286; Parks v. Thomas, 138 Ark. 70; Brown v. Allen, 67 Ark. 386; Kelley v. McDonald, 39 Ark. 333; Ingram v. Marshall, 23 Ark. 115; Wood v. Wilds, 11 Ark. 754.

OPINION

HART, J., (after stating the facts).

It is the contention of counsel for the plaintiff that the court erred in holding that DeLong converted the cotton at the time he sold it and was only accountable to the McArthur estate for its market value on that date.

Counsel for the plaintiff insists that Mrs. McArthur did not authorize DeLong to sell it, and that the plaintiff should be entitled to recover the value of the cotton of the date of September 24, 1921, when the administrator requested DeLong to sell it.

According to the testimony of DeLong himself, Mrs. McArthur, after her husband's death, told him to take charge of the cotton and sell it to the best advantage, and divide the proceeds after deducting the amount of her...