Mitchell v. Mason, 56.

• Decision Date: 21 December 1931
• Docket Number: No. 56.,56.
• Citation: 44 S.W.2d 672
• Parties: MITCHELL et al. v. MASON et al.
• Court: Arkansas Supreme Court

44 S.W.2d 672

MITCHELL et al. v. MASON et al.

No. 56.

Supreme Court of Arkansas.

December 21, 1931.

Rehearing Denied January 18, 1932.

Appeal from Mississippi Chancery Court, Chickasawba District; J. M. Futrell, Chancellor.

Suit by W. S. Mason and others against H. G. Mitchell and others. From a decree for plaintiffs, defendants Mitchell and Bollard appeal.

Affirmed.

Appellees brought this suit in equity against appellants to recover an amount alleged to be due them for certain cotton secured by a chattel mortgage which had been unlawfully conveyed to appellants. The suit was defended on the ground that the mortgaged property had been sold by the consent of the mortgagees, and that they had thereby waived their mortgage lien.

Appellee Will Pyles was the attorney in fact for appellees W. S. Mason and Addie M. Mason, husband and wife, who were the owners of something over 400 acres of land in Mississippi county, Ark. For more than ten years the Masons had resided in El Paso county, Colo., and Pyles had been their agent and attorney in fact to manage their farm, rent or lease the same, and collect the rents therefrom. On the 22d day of May, 1922, the Masons executed a written power of attorney to Pyles, authorizing him to exercise a superintending control over the said 406 acres of land in Mississippi county, Ark., and to rent or lease the same, with power to enter into contracts to carry out the terms of said lease, to collect the rents, and to do and perform all acts necessary to the proper management of said premises, and to all intents and purposes to do and perform, with regard to the management thereof, anything that the Masons might do.

In 1927, Pyles rented the farm to Mrs. E. R. Dickerson, Sr., and E. R. Dickerson, her son. A written contract was executed, by the terms of which the Dickersons were to pay $5,500 as rent. On the 5th day of April, 1927, the Dickersons executed to Will Pyle, as attorney in fact for W. S. and Addie M. Mason, a chattel mortgage on all the crops to be grown for the year 1927 on said land, and on certain personal property named in the mortgage. The indebtedness recited in the mortgage was the rent note for $5,500, another note for $2,500, due on or before October 15, 1927, with 8 per cent. interest, a third note dated April 11, 1927, due on or before November 15, 1927, for $2,314.05, at 8 per cent. interest, a fourth note dated April 1, 1927, due on November 15, 1927, for $2,400, with interest at 8 per cent., and a fifth note dated April 26, 1927, due November 15, 1927, for $678.55, at 8 per cent. interest.

According to the testimony of Will Pyles, the note for $2,314.05 was to be paid to Mitchell & Bollard. Later on in his testimony he said that he was mistaken in this, and that the $2,400 note was the one that was due them. A part of the amount secured by the mortgage was for past indebtedness, a part for the rent for 1927, and a part of the amount was for supplies to be used in making the crop for said year. Pyles testified in detail as to the amounts due appellees under the mortgage, and to the payment received on the indebtedness secured by it. According to his testimony, appellees had received $10,020.61 on said mortgage indebtedness, leaving a balance due by the Dickersons of $5,251.36, with interest thereon at the rate of 6 per cent. after January 1, 1928; that the balance due by H. G. Mitchell and J. S. Bollard, under their firm name of Mitchell & Bollard, amounted to $3,153.74, with interest thereon at the rate of 6 per cent. from January 1, 1928. Pyles admitted that the Dickersons had sold cotton in the seed to Mitchell & Bollard at various times in the amount of $1,297.66. This sum was derived from the sale of cotton by the Dickersons at the gin to Mitchell & Bollard on sixteen different occasions from November 22, 1927, to January 14, 1928. On each occasion, the weigher at the gin gave to Richard Dickerson an order payable at the...