Lufkin v. Daves, 1 Div. 546.

• Citation: 125 So. 811,220 Ala. 443
• Decision Date: 23 January 1930
• Docket Number: 1 Div. 546.
• Parties: LUFKIN ET AL. v. DAVES ET AL.
• Court: Alabama Supreme Court

125 So. 811

220 Ala. 443

LUFKIN ET AL. v. DAVES ET AL.

1 Div. 546.

Supreme Court of Alabama

January 23, 1930

Appeal from Circuit Court, Mobile County; Claud A. Grayson, Judge.

Action by Sewell Lufkin and another for conversion and for money had and received against T. B. Daves and another, partners doing business as the Alabama Fruit & Produce Company. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

D. R Coley, Jr., and Gordon, Edington & Leigh, all of Mobile, for appellants.

Jere Austill, of Mobile, for appellees.

BROWN J.

The plaintiffs, Robinson and Lufkin, during the year 1928 entered into a contract with one Millsap to engage in farming 100 acres in Irish potatoes, plaintiffs to furnish the fertilizer and Millsap the seed potatoes for planting, as their respective contributions to the farming operation.

It was further agreed that plaintiffs would attend to growing and handling the crop, would procure the land, labor, teams, and feed for the teams, estimating the cost for cultivating and handling at $10 per acre, rent $5 per acre, cost of teams $2.50 per acre, aggregating for the items $1,750 for the entire crop, to be advanced by plaintiffs; it being further agreed that, when the crop was gathered, this amount so advanced was to be first repaid to plaintiffs, and the balance of the proceeds was to be equally divided, one half to plaintiffs and the other half to Millsap. The evidence tends to show that the agreement between the parties, in respect to furnishing the fertilizer and seed, the advances and cultivation of the crop, was fully performed.

The evidence further tends to show that, when the time came for gathering and marketing the crop, it was agreed between plaintiffs and Millsap that plaintiffs would gather the potatoes and ship them to Millsap, who was to sell them in the market, without commissions, and account to plaintiffs, or apply the proceeds in accordance with the original agreement between the parties.

Plaintiffs gathered the potatoes, loaded them on the cars to be shipped to Millsap at Nashville, Tenn., taking bills of lading therefor, naming Millsap as the consignee. Instead of selling the potatoes as agreed, he diverted the shipment to Mobile and delivered the bills of lading to the defendant T. B. Daves, doing business as the Alabama Fruit & Produce Company, who sold the potatoes and received therefor $1,444.50. On demand of plaintiffs Daves furnished them with a statement of the amount, but, after secret consultation with Millsap, refused to recognize the right of plaintiffs in the potatoes or any part of the proceeds.

On motion of the defendant, the evidence was excluded and judgment rendered for the defendant.

Under the agreement between the plaintiffs and Millsap, they were tenants in common of the crop. Code 1923, § 8872; Stewart v. Young, 212 Ala. 426, 103 So. 44; Hendricks v Clemmons, 147 Ala. 590, 41...