Neal v. Brandon

• Decision Date: 04 January 1902
• Citation: 66 S.W. 200,70 Ark. 79
• Parties: NEAL v. BRANDON
• Court: Arkansas Supreme Court

66 S.W. 200

70 Ark. 79

NEAL v. BRANDON

Supreme Court of Arkansas

January 4, 1902

Appeal from St. Francis Circuit Court, HANCE N. HUTTON, Judge.

Reversed.

STATEMENT BY THE COURT.

This was a suit by Brandon & Baugh, mortgagees, to replevy some mules. The answer and amended answer and cross complaint denied any indebtedness under the mortgage, and claimed that appellees owed appellant a small amount.

Appellees contended that appellant, Neal, the mortgagor, was indebted to them not only on his own account, but that he was also liable on his mortgage for the account of one Tom Hall, a tenant, whom they had furnished at appellant's request and they produced testimony tending to support their contention. Appellant contended that the mortgage had been paid; that he was not liable for the account of Tom Hall with appellees; that Tom Hall was his tenant, and, as such, was indebted to him for rents and supplies; that appellees having received the crop of Tom Hall knowing that he was a tenant of appellant, were liable to appellant for so much of the crop in their hands as might he necessary to pay appellant the amount of the rents and supplies due him from his tenant; that, taking what appellant had paid appellees on his own account and what they owed him out of the proceeds of the crop of Tom Hall, appellant's mortgage had been paid and appellees were indebted to him in a small sum. He further contended that appellees had sold Hall goods on his own responsibility and on his individual mortgage to them; that there was no written agreement or promise of appellant to answer for Hall's debt, and that he was consequently not liable therefor. Appellant produced proof also to support his contention.

Appellant presented his request for instructions as follows:

"1. If defendant, Neal, rented land in Lee county, Ark., to Tom Hall, to make a crop of cotton and corn in the year 1898, and it was stipulated in the contract that said Neal should receive his rent by becoming the owner of an undivided interest in the crop, the relation of landlord and tenant existed as to the premises, and the parties were tenants in common of the crop. (2.) If defendant, Neal, agreed to furnish Tom Hall with land, two mules and eighty-eight bushels of corn, and the latter agreed to do the work to make the crop, of which they were to be the tenants in common then Tom Hall was an employee of said Neal within the meaning of the act of April 6, 1885, which gives a landlord a lien on the crop raised on the premises for advances to his tenant or employee of any necessary supplies, either of money, provisions, clothing, stock or other necessary articles. (3.) Under the act of March 21, 1883, a landlord may waive his lien for advances to an employee only by written indorsement upon the mortgage or other instrument by which the employee transfers his interest in the crop. (4.) No person could be charged upon any special promise to answer for debt, default, or miscarriage of another, unless the promise or agreement is in writing or signed by the party to be charged therewith." These were refused.

"At the conclusion of the argument the court instructed the jury that defendant, Neal, was not entitled to the credit claimed by him on his own account with Brandon & Baugh for the value of the mules and corn furnished by him to Tom Hall to make a crop."

"The court also instructed the jury that if the goods furnished by Brandon & Baugh to Tom Hall were furnished on the credit of Neal, then Neal would be responsible for the balance due on Tom Hall's account."

Judgment reversed.

R. J. Williams, Fizer & Beasley, for appellants.

The appellant's request for instructions should have been granted. 54 Ark. 346; Sand. & H. Dig., §§ 4795, 3469, sub. 2. Upon foreclosure of mortgage, the amount of indebtedness must be ascertained, and a sale of the property ordered. Sand. & H. Dig., §§ 5856-5860.

Norton & Prewett, for appellees.

The parties were tenants in common of the crop. 54 Ark. 349. The landlord had a lien for advances to his tenant or employee. 54 Ark. 346; Act April 6, 1885; Sand. & H. Dig., § 4795. A landlord may waive his lien. 54 Ark. 346; Act March 21, 1883. The same must be done by written indorsement upon the mortgage or other instrument by which the employee transfers his interest in the crops. Sand & H. Dig., § 3469.

OPINION

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

The court erred in telling the jury "that defendant, Neal was not entitled to the credit claimed by him on his account with Brandon & Baugh for the value of the mules and corn furnished by him to Tom Hall to make a crop." The uncontradicted proof shows that two mules valued at $ 115, and corn valued at $ 44, were furnished Hall to make the crop. The proof shows also that appellees knew that appellant had furnished his tenant the mules. The circumstances were such as to put them on...