Papan v. Thomason

• Decision Date: 11 December 1922
• Docket Number: 43
• Parties: PAPAN v. THOMASON
• Court: Arkansas Supreme Court

246 S.W. 15

156 Ark. 231

PAPAN v. THOMASON

No. 43

Supreme Court of Arkansas

December 11, 1922

Appeal from Arkansas Chancery Court, Northern District; John M Elliott, Chancellor; affirmed:

Decree affirmed.

George C. Lewis, for appellant.

The proof fails to show conversion. Cooley on Torts (3rd ed.) vol. 2 p. 859; 119 Ark. 343; 34 Ark. 427; 26 R. C. L. 1131; 10 Ark. 211; Bowers on Conversion, secs. 2 and 570; 38 Tenn 51; 35 Tenn. 275; 78 Wis. 329. The amount of the lien must be tendered before the cause of action accrues. 38 Cyc. 2058; 79 Ark. 95.

J F. Holtzendorf and Chas. B. Thweatt for appellees.

The lease should be construed most strongly against the grantor or the person who prepared it. 24 Cyc. 215; 112 Ark. 1; 115 Ark. 166; 235 S.W. 1001. It was implied that tenant was to receive his share within a reasonable time. 24 Cyc. 1472; 145 Ark. 119. If appellee was an employee, then appellant should have delivered one-half the crop as wages. 112 Ark. 354; 87 Ark. 475; 54 Ark. 346; 48 Ark. 264. There was a conversion here. 38 Cyc. 2029; 7 R. C. L. 824; 31 L. R. A. 698. The conversion was not waived. 29 Ark. 365; 83 Ark. 10; 89 Ark. 342; 38 Cyc. 2102-3; 148 Ark. 117; 26 R. C. L. 1113 and 1155. The appellee was entitled to the highest market value. 38 Cyc. 2096; 26 R. C. L. 1151.

OPINION

SMITH, J.

Papan and Thomason, the parties to this litigation, made a contract in writing for growing a crop of rice in the season of 1919. Papan owned the land, and was to furnish the fuel, etc., and was designated as the party of the first part. Thomason was to do the work, and was designated as the party of the second part.

The contract provided that "said second party agrees to seed one hundred eighty acres with rice, and furnish all necessary labor to raise, harvest, and deliver said crop to nearest railroad station or rice mill, and take care of it until settlement is made, for one-half of the crop. Said second party further agrees to do and perform everything necessary to produce said crop, free of expense to first party, except those things especially mentioned herein that said party agrees to do."

Papan specifically reserved the granary, where the rice was to be stored, and where it was stored after it had been harvested. Papan advanced money during the year to the extent of $ 1,277.54 to enable Thomason to make the crop, and it was agreed between them that these advances should be repaid when the crop was sold.

There were two kinds of rice grown; one kind being known as Blue Rose, of which there were four cars, and a division in kind was made of it, each party receiving two cars; the other kind of rice was called Early Prolific, and there were 3,849 bushels of it, all of which were stored in the granary, the possession of which Papan had reserved in the contract.

The suit was brought by Thomason on the theory that Papan had converted the crop to his own use, and the court below found the fact so to be, and stated the account between the parties on that theory, and the correctness of that finding is the question in the case.

The testimony of the parties is sharply conflicting, and each has substantial corroboration; but the court found the fact to be that Papan had converted Thomason's interest in the crop, and on that finding charged Papan with its value. The basis of this finding was that Papan had refused to divide the rice in kind, and had also refused to sell the rice and divide the proceeds of the sale.

The contract is somewhat ambiguous, and leaves in doubt the question, whether it creates the relationship of landlord and tenant or that of employer and employee; but the parties agree that this is immaterial, and that the controlling question is one of fact, that question being whether Papan converted the rice.

According to Thomason and the testimony in his behalf, he made a demand for a division of the rice or for a sale of it and a division of its proceeds on six different occasions, the last of such demands having been made on January 9, 1920, and the court fixed the value of the rice as of that day.

There appears to have been no valid reason why the division should not have been made. According to Thomason, the reason assigned by Papan for refusing to make the division was that the price would go up, and Papan did not want to sell, and he warned Thomason and his employees not to move the rice. The court below evidently credited this testimony, and we cannot say that the finding based thereon is clearly against the preponderance of the evidence, although, as we have said, it was all disputed by Papan and certain witnesses who testified in his behalf. The refusal to divide either the rice or the proceeds thereof, as demanded by Thomason, constituted a conversion and warranted a suit for so doing. Pickering v. Moore, 67 N.H. 533, 32 A. 828, 31 L.R.A. 698; 7 R. C. L. p. 824; Fenton v. Price, 145 Ark. 116, 223 S.W. 364; Hooten v. State, 119 Ark. 334, 178 S.W. 310; Ray v. Light, 34 Ark. 421.

The testimony shows that the price of the rice had advanced sharply from the time of the first demand for a division until January 9, 1920, at which time its market value was $ 3.25 per bushel. The market advanced slightly after that, and then commenced to decline and continued to do so, until the rice, for which a price of $ 6,254 could at one time have been obtained, was finally sold for $ 1,490.

Papan insists that, if his refusal to divide the rice be treated as a conversion of it, he should be charged with its value at the time when...