Powell v. Smith

• Decision Date: 16 November 1896
• Citation: 74 Miss. 142,20 So. 872
• Court: Mississippi Supreme Court
• Parties: J. F. POWELL v. T. C. SMITH

20 So. 872

74 Miss. 142

J. F. POWELL v. T. C. SMITH

Supreme Court of Mississippi

November 16, 1896

October 1896

FROM the circuit court of Yazoo county HON. ROBERT POWELL, Judge.

T. C Smith sued J. F. Powell in the circuit court, averring in the declaration that he, the plaintiff, was employed for the year 1892 as overseer and manager of a plantation in Yazoo county called "Gandercleugh, " by one Wilson, the owner and aided by his labor to make, gather, and prepare for sale one hundred bales of cotton thereon in said year; that a balance of $ 500 was due him by Wilson for his wages; that defendant, Powell, had, without plaintiff's consent obtained possession of twenty-five bales of the cotton under a deed of trust thereon given him by Wilson, and had converted the same to his own use; that the cotton was worth $ 25 per bale, and the declaration prayed for a judgment against defendant for the sum due plaintiff from Wilson. A demurrer to the declaration was overruled in the court below and the defendant then filed a general traverse of its allegations, and the case was tried on the issue thus made.

On the trial before the jury the plaintiff proved substantially the facts stated in the declaration, but it further appeared that the defendant received all of the cotton raised on the plantation in 1892, most of it having been shipped to him by Wilson. About twenty bales were so shipped for Wilson by the plaintiff himself. Plaintiff knew of all the shipments, but was unadvised as to the state of accounts between Wilson and the defendant; plaintiff was not asked to consent, nor did he object, to the shipments. Wilson having failed to pay plaintiff, suggested to him a proceeding against the cotton. Plaintiff then consulted a lawyer, and was advised that the defendant had the superior right to the cotton. Being so advised, plaintiff accepted Wilson's note for the $ 500 balance, payable out of the crop of the following year, 1893.

On cross-examination, the plaintiff testified that the note was received in payment of the sum due him from Wilson. On his re-examination, he was asked by his counsel, "What agreement, if any, did you have with Wilson at the time the note was taken relating to your lien upon the cotton?" To this he replied that it was agreed that he did not, by taking the note, release his lien, if he had any, on the cotton.

The plaintiff having rested his case, the defendant moved to exclude all of the evidence, but the motion was overruled. Defendant came upon the stand as a witness, and, in the course of his examination he was asked by plaintiff if he did not receive the proceeds of the cotton, and he testified that the cotton came to his hands as a factor, and that it was sold for Wilson and credited to his account.

The assignments of error, which are mentioned in the opinion of the court by numbers, were predicated of the rulings of the court in permitting, over defendant's objections, the introduction of testimony showing the agreement between the plaintiff and Wilson that the taking of the note should not be a waiver of the lien on the cotton, in refusing to exclude all of plaintiff's evidence, and in permitting plaintiff to prove by defendant that he had received the proceeds of the cotton.

The second instruction given for the plaintiff was in these words: "The court instructs the jury, for the plaintiff, that the mere taking of a note for the balance due him by Wilson will not release any lien that Smith might have on any cotton raised on the Gandercleugh plantation during the year 1892, but that, in order to release said lien, there must have been a direct agreement to that effect."

A verdict and judgment were rendered in the court below for the plaintiff, and defendant appealed.

Judgment reversed and cause remanded.

Campbell & George, for appellant.

The demurrer to the declaration ought to have been sustained. To give a right of action to the plaintiff in this cause against defendant, a factor who sold the cotton for Wilson, would be to extend such right to a large class of persons who are equally, with the plaintiff, within the statute, whose claims would be hard to ascertain, and whose secret liens will tend to reduce the price of our chief crop and be exceedingly detrimental both to the agricultural and mercantile interest of the state. The statute itself nowhere intimates a right of action against one who either purchases the cotton, or who, as a broker or factor, sells the same in open market for the account of the owner. It provides a simple and easy mode of enforcing the lien--the cotton can be followed wherever found and subjected to the payment of the lien. Plaintiff had no right of property in the cotton, but a mere claim on it which did not entitle him to bring an action of trover for it. Westmoreland v. Wooten, 51 Miss. 825. While the declaration is styled "trespass on the case, " it is really in trover against Powell for the seizure and conversion of the cotton, and it is nowhere charged in it that defendant had notice of the lien claimed by plaintiff. The lien given employes by the statute is pari passu in its nature with a judgment lien, and it is decided that a judgment creditor, having a judgment lien, cannot recover the value of property converted. Dozier v. Lewis, 27 Miss. 679.

In considering the evil consequences of allowing a suit like this to be maintained, it must be remembered that if employes can maintain such a suit, they can do so as long as their debts exist, and none of them would be barred in less than three years.

We think that Campbell, J., announced the true rule in Wooten v. Gwin, 56 Miss. 422, where he says: "Where a lien is given by law, and a remedy to enforce it, this remedy is exclusive, and if the holder of the lien permits the products to get beyond his reach, that he must bear the consequences of his want of vigilance or own negligence." We do not so argue with the expectation that this court will reverse the several decisions to the contrary in reference to the landlord's lien; the doctrine of stare decisis would in all probability prevent; but we do insist that the difficulties which have been encountered in landlord's lien cases, in the decisions of this court, ought to serve as warnings to prevent the extension of the doctrine to employe's liens, a much more numerous class, and fraught with even greater dangers.

The court erred in permitting the plaintiff to testify as to his intentions in taking the note not to waive a lien on the cotton. The question as to whether the taking of the note was a waiver of the lien, was one for the court to decide from the instrument itself. The note recited that it was to be paid out of the crop of 1893. Parberry v. Johnson, 51 Miss. 291; West v. Platt, 127 Mass. 372; 28 Am. & Eng. Enc. L., 528, note 4, and authorities cited.

The second instruction was clearly wrong in this, that it announces that a lien cannot be released except by a direct agreement. This is so palpable as to need no extended argument; the mere statement condemns it.

The court erred in not instructing the jury, as requested by defendant, that the burden of proof was on the plaintiff to show that he did not consent to the delivery of the cotton to appellant. Warren v. Jones, 70 Miss. 202.

John S. Perrin, for appellee.

This suit was brought on the theory that the lien given by the law to an employe upon the crops which he assisted by his labor to make, gather, and prepare for sale or market, was similar, as regards the rights and remedies of the employe, to the lien given to the landlord for rent and supplies. Upon demurrer to the declaration, the court below sustained this view of the law. The first question which arises, and which goes to the foundation of the suit, is whether this view of the court below is correct. An examination of the statutes giving the respective liens to the landlord and to the employe, together with the decisions of this court upon the statutes, will leave no room for doubt upon this subject. If analogy counts for aught, and reasoning therefrom is recognized, then there ought not to be any difficulty in arriving at what this court has established as the law applicable to this and similar cases, for but one conclusion can be arrived at--a conclusion so plain that "he who runs may read." But if we are to go into the field of speculation, as counsel for appellant would have us to do, and theorize upon effects which have never been produced, it is more than probable that we will be involved in "a sea of doubt." Let us look at the statutes provided in each case. They are found in chapters 72 and 75, of the code of 1892.

There are many points of similarity between them. Both are statutory liens; each in derogation of the common law landlord and employe are specially favored by the lawmakers. By the same penal statute, it is made as much a crime to remove the property on which the employe has a lien as it is to remove that upon which the landlord's lien exists. Code of 1892, § 1183. The landlord is protected by his paramount lien, not only from an attempt on the part of his tenants to defraud him, but is also protected from the world--even from the laborer, where the latter contracts with some other than the landlord himself. The employe's lien is equally as broad, and specially so where his contract is made with the owner of the soil. Almost the same words are used in the two statutes, but if there is any difference with regard to their latitude, it is in favor of the employe. In the landlord's case, these words are used: "Shall be paramount to all other liens, claims, or demands made upon such products." In the employe's lien, these are the words used: "Shall be paramount to all liens and incumbrances or rights of any...