Morris v. Burrows

• Decision Date: 18 November 1915
• Docket Number: (No. 1509.)
• Parties: MORRIS et al. v. BURROWS et al.
• Court: Texas Court of Appeals

180 S.W. 1108

MORRIS et al. v. BURROWS et al.

(No. 1509.)

Court of Civil Appeals of Texas. Texarkana.

November 18, 1915.

Appeal from Bowie County Court; P. A. Turner, Special Judge.

Action by G. W. Burrows and others against G. W. Morris and others. From judgment for plaintiffs, defendants appeal. Modified.

Johnson & Boswell, of New Boston, and C. A. Wheeler, of Texarkana, for appellants. O. B. Pirkey, of New Boston, and Mahaffey & Keeney, of Texarkana, for appellees.

LEVY, J.

This is an action for debt by the appellees, as landlords, against G. W. Morris, their tenant, for rents and advances for the year 1914 in the sum of $584.40, and for foreclosure of the landlord's lien, and against appellants for the value of 10½ bales of cotton, $420.00, alleged to have been converted by them at a time when the plaintiff had a subsisting and unsatisfied lien on the same. The defendants denied the existence of a landlord's lien at the time of the alleged conversion, averring that the lien had expired by reason of the fact that the cotton had been off the rented premises for more than thirty days prior to the alleged conversion. The defendant Fuller Mercantile Company further pled the execution by G. W. Morris of a chattel mortgage to them on the cotton, and that the cotton had been sold and delivered to them in part payment of the debt secured by the chattel mortgage. The case was tried before the court without a jury, and resulted in a judgment in favor of appellees against the tenant G. W. Morris for the debt sued for and foreclosure of the landlord's lien, but against appellants for the value of the 10½ bales of cotton.

The facts establish that plaintiffs were the landlords of G. W. Morris, and had a landlord's lien for their debt, which was for rents and advances to make the crop. The 10½ bales of cotton in controversy were raised on the rented premises in the year 1914. Nine bales of the cotton were gathered and ginned during the months of September and October, and immediately after being ginned and wrapped were removed from the gin to and stored in the warehouse of the Morris-Campbell Warehouse Company; the dates on which the various bales were placed in the warehouse being as follows: September 17, 19, 27, and 29, and October 6, 8, 14, 17, and 26, 1914. The gin was located in New Boston, and the warehouse was located in the same town. The Morris-Campbell Warehouse Company, a partnership, are private warehousemen, and their agent and manager, James Chance, issued and on November 2, 1914, delivered to G. W. Morris a receipt for each of the nine bales of cotton stored by him in the warehouse, giving date the cotton was stored, number of receipt, weight, class, and number of the bale. It appears that G. W. Morris did not have an express agreement with the landlords that he was to place the cotton in storage, but it appears that the landlords knew that it was being put in storage for marketing when the price was suitable, and did not object, but acquiesced in its being stored for the purpose stated. James Chance on November 5, 1914, qualified as a public warehouseman under article 7820, Vernon's Sayles' Annotated Stat. of 1914, and with the consent and by some arrangement of the warehouse company continued as the custodian and had in his possession the nine bales of cotton. On December 26, 1914, James Chance on a simple order from G. W. Morris delivered the nine bales of cotton stored in the warehouse to the Fuller Mercantile Company, without the knowledge or consent of G. W. Burrows, and without demanding or making inquiry about the receipts theretofore issued and delivered. The mercantile company sold the cotton. G. W. Morris, it appears, on December 26, or December 24, 1914, sold the cotton to the mercantile company as a payment on the indebtedness due by him to them, which indebtedness was secured by chattel mortgage upon the cotton. It appears, though, as a fact that must be here adopted, as comprehended in the trial court's judgment on conflicting evidence, that on November 2, 1914, G. W. Morris "turned over this cotton" and transferred and delivered the warehouse receipts to appellee Burrows, with the intent and for the purpose of his holding possession of them until the rent debt was paid; and that appellee Burrows two days thereafter gave personal notice thereof to James Chance, agent and manager of the warehouse, and that James Chance consented to hold the cotton in replying, "Then I will look to you for the storage." On January 1, 1914, appellees, having the receipts, made demand of James Chance for delivery of the cotton stored, but were notified by James Chance that he had previously delivered it to the Fuller Mercantile Company on order of G. W. Morris. There is evidence to sustain the findings of the trial court as to the weights and value of the cotton, and the findings are here adopted.

It appears that G. W. Morris sublet some acres of the farm to J. A. Dodd for one and a half bales of cotton rent. J. A. Dodd gathered the bale and a half and had it ginned about October 5, or October 20, 1914, and on the same day hauled it to his own premises, which were not the rented premises, and there stored and held it. The half bale of cotton was packed and wrapped with a half bale individually and separately owned by J. A. Dodd, thus making a single full bale of cotton. At the request of G. W. Morris the bale and a half of cotton were hauled on December 23, 1914, by J. A. Dodd to New Boston, and sold by G. W. Morris to the Fuller Mercantile Company. Appellee Burrows testified:

"I learned one and a half bales of cotton were stored at Dodd's; and it was all right with me; but I never had any conversation with Mr. Morris about this at any time, either before or after it was left there, until Friday before November 2d. Mr. Morris told me then he would turn that cotton over to me, and he did turn it over to me then, and I told Mr. Dodd to bring it into town. Mr. Dodd never brought it to me, and I never tried to move it from the premises."

J. A. Dodd testified:

"This cotton was stored by me from the time it was ginned until it was sold, at my house on my farm, and not on the rented premises. I did not ask either Mr. Morris or Mr. Burrows anything about storing this cotton at my house. Some time in the latter part of November Mr. Burrows wanted me to haul this cotton to town, and I spoke to Mr. Morris about it, and Mr. Morris said that he would send his wagon over and carry it to town himself."

Thus it is concluded as a fact that J. A. Dodd had not delivered the cotton to G. W. Morris or appellee Burrows in payment of security for rent, at the time it was on Dodd's farm, but held the same in his own right and subject to the lien for rent, and that G. W. Morris and appellees each held landlord's liens, but were not actual owners of the cotton while it was stored at J. A. Dodd's home, from October 5 to November 4, or from October 20 to November 19, 1914; that the cotton was delivered by J. A. Dodd to G. W. Morris on December 24, 1914, in payment of rent, and that the cotton at the time it was sold to the Fuller Mercantile Company on December 24, 1914, had been removed from and had remained off the rented premises for more than one month.

After Stating the Case.

Appellants, by proper assignments of error, challenge the judgment against them as erroneous upon the ground that the undisputed evidence shows that the 10½ bales of cotton had been removed from the rented premises and from the landlord's premises for more than one month after it had been ginned for market, and that the appellees had no landlord's lien before the date of the alleged conversion.

It is believed that the proper legal effect attaching to the facts entitles the appellees to a judgment in their favor against appellants in conversion of the nine bales of cotton in controversy, but not so as to the bale and a half of cotton raised by J. A. Dodd. It was proven as a fact that the Morris-Campbell Warehouse Company, a partnership, through its manager James Chance, received from G. W. Morris in September and October the nine bales of cotton, with the object of storing it for hire. At the time of storing the cotton the appellees had a landlord's lien on it, and the lien had not at the time expired by operation of law. The warehouse company, acting through its manager, issued to G. W. Morris warehouse receipts for the nine bales of cotton stored, acknowledging that the warehouse company held the cotton in store for the person to whom the receipts were delivered. And it further appears as a fact, as comprehended in the trial court's judgment, that on November 2, 1914, G. W. Morris transferred and delivered to appellee Burrows the warehouse receipts for the nine bales of cotton issued and delivered to him by the warehouse company, in recognition of the landlord's lien and with the intention and purpose of appellee Burrows' holding possession of them until the rent debt for the year 1914 due by him to appellees was paid. It appears as a fact that within two days after the transfer and delivery of the receipts to them by G. W. Morris the appellee Burrows gave notice to the warehouse company through its manager, and that the manager assented to it and to hold appellees for the storage charges of the cotton. The cotton was not stored for a definite time, and the receipts, which were simple receipts, did not state any time for redelivery of the cotton. The facts thus show the creation of a valid express contract of bailment for hire between G. W. Morris and the warehouse company. In virtue of their...