Small v. Rush

• Decision Date: 26 November 1910
• Citation: 132 S.W. 874
• Parties: SMALL et al. v. RUSH.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

132 S.W. 874

SMALL et al. v. RUSH.^†

Court of Civil Appeals of Texas.

November 26, 1910.

Rehearing Denied December 17, 1910.

Appeal from District Court, Delta County; T. D. Montrose, Judge.

Suit by A. J. Rush against W. B. Small and another. Judgment for plaintiff. Defendants appeal. Affirmed.

E. P. Scott and J. L. Young, for appellants. Newman Phillips, for appellee.

BOOKHOUT, J.

This suit was instituted by A. J. Rush as plaintiff against W. B. Small and T. A. Johnson, defendants, in the district court of Delta county, alleging in substance, that plaintiff had leased a certain farm located in Delta county, Tex., to the said W. B. Small to be by him cultivated in corn and cotton during the year 1908. The further allegations were made: That said Small was to pay as rental for said land one-third of the corn and one-fourth of the cotton grown thereon. That on the following days and dates he furnished said tenant Small the following provisions, animals, tools, and money, which were necessary to enable him to make a crop on said farm during the year 1908:

                February 18, 1908, cash.............. $15 00
                May 18, 1908, cash...................   5 00
                June 10, 1908, cash..................   2 00
                July 25, 1908, corn..................  38 33
                July 10, 1908, cash..................  25 00
                Oats for seed........................   5 50
                July __, 1908, 60 bales of hay.......  15 00
                

That during the spring and summer of 1908 provisions and supplies (the exact dates and the different amounts plaintiff cannot give) furnished at the store of Oscar Anderson in Delta county, $287; provisions and supplies furnished at the store of C. E. Anderson of Delta county, $21.80; and, in like manner, from the store of Burton-Peel in Paris, Tex., $162.50; November 28, 1907, two mules, $310.

It was alleged that A. J. Rush, plaintiff, had a landlord's lien on all the crops to secure him in the payment for the rents and supplies, and that said W. B. Small had sold five bales of cotton grown upon plaintiff's farm to T. A. Johnson, without the knowledge and consent of A. J. Rush. A distress warrant was issued and levied upon five bales of cotton in the possession of T. A. Johnson. Johnson replevied the cotton. Johnson answered, denying that he had purchased any cotton from W. B. Small upon which A. J. Rush had a lien, and, further, that if said Rush had ever had a lien on said cotton he, Rush, had given his permission for the sale thereof. There was a trial, and the jury under a peremptory instruction by the court found in favor of plaintiff against the defendant Small, individually, for $99.90, and in favor of plaintiff against Small for $959.79, with a foreclosure of his landlord's lien as prayed for. The jury further found in favor of plaintiff for the five bales of cotton in the possession of Johnson in the sum of $209.95, with a foreclosure of the lien thereon against said Johnson and the sureties on his bond. Judgment followed on the verdict, and defendants appealed.

The brief of appellant Small presents three contentions, which we feel called upon to consider.

1. That the court erred in overruling his exceptions to plaintiff's petition, which are to the effect that the petition did not itemize the accounts sued on, and did not give the different items and the value thereof. There was no error in this ruling. This is not a suit, strictly speaking, on an account, but a suit for money and property advanced and paid out by the landlord to enable the tenant to make a crop on the leased premises. The petition alleged the amount of cash advanced and the time it was advanced. It alleged the amounts paid out by the landlord to different stores for provisions and supplies...