Peets & Norman Co. v. Baker

• Decision Date: 05 April 1909
• Docket Number: 13,813
• Citation: 95 Miss. 576,48 So. 898
• Parties: PEETS & NORMAN COMPANY v. FREDERICK N. BAKER
• Court: Mississippi Supreme Court

48 So. 898

95 Miss. 576

PEETS & NORMAN COMPANY v. FREDERICK N. BAKER

No. 13,813

Supreme Court of Mississippi

April 5, 1909

FROM the circuit court of Copiah county, HON. WILEY H. POTTER Judge.

Baker appellee, was plaintiff in the court below; Peets & Norman Company, appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

R. N. &amp H. B. Miller, for appellant.

It was fatal error to refuse instructions 1, 2 and 3 asked by the appellant and refused by the court below. These instructions told the jury that the lien of the landlord on agricultural products did not follow those products out of the state; and if they were sold out of the state the purchaser was not liable. The record shows that the appellant was merely the agent of Packer in the shipment of the tomatoes, and never purchased from him any tomatoes. Ball v. Sledge, 82 Miss. 749, 35 So. 477.

H. J. Wilson, for appellee.

[The brief of counsel for appellee was withdrawn or misplaced from the record before it reached the reporter.]

OPINION

MAYES, J.

This is a suit by Baker against Peets & Norman Company to recover the alleged value of 300 crates of tomatoes claimed to have been bought by Peets & Norman Company from one Packer. The claim of Baker grows out of a rental contract which he had with Packer for the lease of certain agricultural lands during the year 1907. The right attempted to be asserted against Peets & Norman Company is based on Code 1906, § 2832, whereunder is given to the landlord a lien on all the agricultural products grown on the leased premises, etc.

All of the witnesses in this case testify with great candor and fairness, and the facts are as follows, viz.: Baker, being the owner of certain lands in Copiah county, made a lease of same to Packer for the year 1907. Peets & Norman Company are merchants, and during the year furnished Packer, on open account, a considerable quantity of merchandise, largely exceeding in value the proceeds of tomatoes received by Peets, & Norman Company from Packer. The crop made by Packer consisted altogether of tomatoes, and it is shown by Baker that Packer delivered the tomatoes grown on the land to Mr. Norman, of the firm of Peets & Norman Company, without having discharged the debt owing for the rent, and Baker claims Peets & Norman Company converted these tomatoes and applied the proceeds of same to the payment of the debt which Packer owed him, thereby defeating his (Baker's) claim for rent; hence this suit for the conversion. It is agreed that Packer owes Baker a balance of $ 150 for rent for 1907 at the date of this suit.

Baker testified that he had a talk with Norman some time in June, and told him that Packer had not paid his rent, and that he would hold Peets & Norman Company responsible for the value of the tomatoes received by them. This is not disputed by Norman but Norman says that he thinks this conversation occurred about the close of the tomato season.

Dodds, the bookkeeper for Peets & Norman Company, testified that he had a conversation with Baker in reference to the Tom Packer tomatoes, that in such conversation Baker told him that the rents were not paid, but he does not think he mentioned what Baker said to Norman; that all during the time Peets & Norman Company were receiving the tomatoes from Packer he (Packer) was trading with them on open account, and was shipping the tomatoes through the firm of Peets & Norman Company; that the shipping began on the 28th day of May, and stopped about the 5th of July; and in answer to a direct interrogatory he was asked this question: "Q. What was the amount of tomatoes he (Packer) delivered to you? A. The total number of crates was 402, and the amount was $ 255.60. He owed something like $ 300 to the store at the beginning of the season. He delivered these tomatoes to be placed to this account." He further says that these tomatoes were delivered to, and they were shipped out of the state of Mississippi by, Peets & Norman Company, and sold in foreign markets.

Webster Millsaps testifies that he went with Baker to Peets & Norman Company's store and looked at the books to see if there was enough to pay the rent, and that at the time they went there the books showed, according to his best recollection, that at the time of the notice Peets & Norman Company had then received from Packer tomatoes of the value of $ 154; that after Peets & Norman Company were notified they received from Packer other tomatoes of the value of about $ 100.

Packer, the tenant, testifies that he does not know exactly how many tomatoes he took to Peets & Norman Company, but that he brought them in there to Norman and took his receipts. He further says, in answer to the interrogatory as to whether or not there was any understanding between him and Norman about what to do with the proceeds of the sale, that he had an account there, and that Dodds, the bookkeeper, gave him credit on his account for the tomatoes shipped, and all the proceeds of the tomatoes shipped through Norman were applied to his account, and statements were rendered showing the amount they brought. On cross-examination he is asked the following questions, viz.: "Q. You turned over all your tomatoes to Norman that you raised? A. Yes, sir. Q. And the proceeds of the sale were applied to your account? A. Yes, sir. Q. You never saw a cent of the money? No, sir; but I always got the consignment receipts."

In Norman's testimony he states that Packer owed him an account amounting to $ 560.76, and when asked, "Q. How many tomatoes did you buy from him?" he answered: "A. I see three different shipments, amounting to $ 60. This was applied on his accounts, the tomatoes you see here. I believe in telling the truth about it. I can show you from our books. The tomatoes that were bought from Packer haven't been entered here. The tomatoes he grew on the Baker place were applied on his account, and those he sold for Lewis & Byrd were paid for at the time." Norman does not deny that the tomatoes were received to be applied to the amount of Packer, as stated by Dodds, when the proceeds should be returned, and does not deny that he knew, at the time, that Packer was the tenant of Baker.

The facts constitute a conversion by Norman of the tomatoes in this state, and he is estopped to deny that they were so converted. Baker is not seeking to recover as for a conversion against the purchaser of the tomatoes who bought outside of the state, but the suit is against one who converted, or gave active agency in this state in defeating the landlord's lien in order that he might convert the proceeds to the payment of the tenant's debt with him. After Norman had the conversation with Baker, when Baker told him that he would hold him for the value of the tomatoes, the testimony then shows that he received enough tomatoes from Packer to about discharge the debt owing to Baker for the crop year of 1907 for the leased premises. In other words the uncontradicted testimony shows that Packer delivered the tomatoes to Norman to be placed on his account, and they were received with this understanding. The only thing remaining to be done by Norman was to ship them to the market and make the actual credit on the books, when the returns came back showing the amount of the proceeds. The tomatoes were taken to Norman with the intent to be applied to the account. They were received by Norman for this purpose, and shipped out of the state for the purpose of converting them into money, intending, at the time when the proceeds should come in, that they should be applied as a payment of Packer's debt. If these facts do not make Peets & Norman Company liable for a conversion of these...