Pelzer v. Mutual Warehouse Co.

• Decision Date: 26 January 1928
• Docket Number: 3 Div. 829
• Parties: PELZER v. MUTUAL WAREHOUSE CO.
• Court: Alabama Supreme Court

117 So. 165

217 Ala. 630

PELZER v. MUTUAL WAREHOUSE CO.

3 Div. 829

Supreme Court of Alabama

January 26, 1928

Rehearing Denied May 31, 1928

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action by Arthur Pelzer against the Mutual Warehouse Company for damages for destruction of a lien. From a judgment for defendant, plaintiff appeals. Affirmed.

Arrington & Arrington, of Montgomery, for appellant.

C.P McIntyre, of Montgomery, for appellee.

GARDNER J.

Appellant sued appellee for the recovery of damages for the destruction of his landlord's lien for rent on certain cotton raised during the year 1925 on his plantation by his tenant, one Robert Woolfolk, now deceased. The existence and extent of plaintiff's lien (Craven v. Phillips, 214 Ala 430, 108 So. 243), and knowledge thereof on the part of the defendant (Lomax v. Le Grand, 60 Ala. 537) was not controverted, but the defense was rested upon evidence tending to show a waiver of the lien by plaintiff. The trial court concluded this evidence was sufficient upon which to submit the question of waiver for the jury's determination, which was done, resulting in a verdict for the defendant, and from the judgment following plaintiff has prosecuted this appeal.

The question of major importance on this appeal relates to the action of the court below in refusing the affirmative charge duly requested by the plaintiff. As has been often stated, the scintilla rule of evidence prevails in this state ( Kalevas v. Ferguson, 216 Ala. 625, 114 So. 292), and, "if there is evidence reasonably affording an inference adverse to right of recovery by the party asking the general charge, or from which the jury might draw an inference adverse to such party, the general charge should not be given." McMillan v. Aiken, 205 Ala. 35, 88 So. 135.

In Tuttle v. Walker, 69 Ala. 172, it was held that a mere consent of the landlord to a removal of the crops from the rented premises is not a waiver of the lien, and in discussing the question the court said:

"If the landlord consents that the tenant should remove and sell the crops, a sale to a bona fide purchaser would operate a destruction of the lien. *** Whenever a waiver of the lien is claimed from the consent of the landlord to the removal of the crop, all the attendant circumstances must be considered, and from them the inference drawn, whether there was an intention to waive the lien, or whether strangers dealing in good faith, upon the possession of the tenant separated from the possession of the rented premises, have been misled."

And in Coleman v. Siler, 74 Ala. 435, is the following here pertinent:

"Whether such a lien is waived, or not, is chiefly a question of intention, to be determined, like other questions of fact, by the circumstances of each particular case. This court has held, that such a lien is not impaired, as a vendor's lien would in like case presumptively be, by the landlord's taking from the tenant a note with personal security for the payment of the rent. Denham v. Harris, 13 Ala. 465. Neither, as expressly adjudged, will the mere consent of the landlord to the removal of the crops from the premises, without more, operate as a waiver. Tuttle v. Walker, 69 Ala. 172. Before the law will authorize such intention to be inferred, the rule is, that it must be made obvious by plain proof."

The evidence is not voluminous, and has been carefully read and considered by the court in consultation, and the conclusion reached that the trial court correctly ruled in refusing the affirmative charge requested by the plaintiff.

No detailed discussion of the testimony will be indulged, but a brief reference to the salient features will suffice. Woolfolk had rented this same land from plaintiff for a series of years beginning in 1919, and continuing through the year 1925. He had during these years obtained his advances from defendant corporation of which James and John McIntyre were the owners and officers, and which business had been so conducted in the city of Montgomery for a number of years at the corner of Perry and Jefferson streets, and had executed mortgages upon his crop and stock to secure the same. Plaintiff knew that Woolfolk had no source of revenue other than his crop, for, as stated by the plaintiff, "that was the only thing he had," out of which to pay the rent. Plaintiff has resided in Montgomery 35 years, and had a...