Somerville v. Delta Grocery & Cotton Co.
| Decision Date | 17 June 1929 |
| Docket Number | 28169 |
| Parties | SOMERVILLE v. DELTA GROCERY & COTTON CO |
| Court | Mississippi Supreme Court |
Suggestion Of Error Sustained In Part, February 16, 1931.
1. LANDLORD AND TENANT. Word "supplies," within landlord's agreement to waive rent lien, includes any substance contributing materially to successful production of crops.
Landlord in substance, agreed with cotton and grocery company furnishing tenant with supplies that, if it would sell to tenant on landlord's place all supplies necessary for the successful production of crops within maximum limit, landlord would waive priority of lien as landlord for rents against crops produced.
2. LANDLORD AND TENANT. Cash advanced to tenants necessary to work cotton crop Held within landlord's contract to waive lien for "supplies."
Landlord contended that words of contract "if you sell... all supplies necessary for the furnishing of his tenants thereon and the successful production of the crops thereon," should be construed in its narrow and restricted sense; that word "sell" could not be applied to cash advances and that to sell supplies did not include advancement of cash. Evidence showed that it was necessary to furnish cash, as well as customary among landlords in particular county, in order to obtain and retain labor necessary to the successful operation of the cotton raising industry.
3. LANDLORD AND TENANT.
Cash advanced to tenant to pay fine of subtenant held not necessary to successful operation of plantation within landlord's contract waiving rent lien for "supplies."
4. LANDLORD AND TENANT. Cash advanced to tenant for purchase of horses and mules held not within landlord's contract waiving rent lien, where they were subsequently sold and proceeds applied on tenant's debt.
Tenant with part of cash advanced by third person pursuant to landlord's contract to waive rent lien purchased mules and horses to operate plantation. Subsequently, horses and mules were sold at increase in price and proceeds applied on debt of tenant with third person who advanced cash.
APPEAL from chancery court of Coahoma county, Second district, HON. HARVEY MCGEHEE, Chancellor.
Suit by Dr. T. H. Somerville against the Delta Grocery & Cotton Company, which on plaintiff's death was continued in the name of Mrs. Ella V. Somerville, as executrix. From the decree rendered, plaintiff appeals. Affirmed in part, and reversed in part, and decree rendered.
Suggestion of error sustained in part, overruled in part.
Affirmed in part; reversed in part; and decree here. Suggestion of error sustained in part, and overruled in part.
L. E. Farley, of Memphis, Tenn., and R. J. Farley, of Oxford, for appellant.
The word "sell" is a word of fixed and definite meaning, viz, the transfer of title in property for a money consideration.
Black's Law Dictionary, Sub-title "Sell" "Sale."
Money, at least domestic money is not the subject of barter and sale. Under the statute in Mississippi the landlord is given a threefold lien:
1. For the rent of the property.
2. For money advanced by him to the tenant, and
3. For supplies furnished.
Code 1906, sec. 2832, Hemingway's 1927 Code, sec. 2492.
A waiver executed by a landlord who chooses not to furnish his tenant with supplies, does not operate as a waiver as to any cash advances which may be made.
Fancy groceries, salad oil, candies, cakes, fancy toilet articles, tobacco, cigarettes, automobile tires and tubes, malt syrup, as a matter of law are not supplies necessary for the furnishing of tenants or production of crops on a plantation in the Mississippi Delta, operated by negro laborers and tenants.
Where one who furnishes supplies under a waiver of priority from the landlord holds additional security from the tenant for the satisfaction of his account, the furnisher must look first to his security, before he can look to the landlord or the waiver made by the landlord.
H. & C. Newman v. Delta Grocery & Cotton Company, 138 Miss. 683, 103 So. 373, 104 So. 157.
Sale is a word of precise legal import, both at law and in equity. It means at all times a contract between parties to give and to pass rights of property for money which the buyer pays or promises to pay to the seller for the thing bought and sold.
Black's Law Dictionary.
Relative to custom the law is (a) That parol proof may be offered of a prevailing custom or usage so as to add to any contract oral or written implied terms in addition to those which are expressed, (b) That the same kind of proof may be offered to explain expressed terms written or oral where either by custom or usage, the language used has a different meaning from its common and ordinarily accepted meaning, (c) but also that no proof of a custom can be used for the purpose of varying, altering or contradicting expressed written or oral language in a contract, which has a definite, well understood and unambiguous meaning.
Maynard, Fitzgerald & Venable, of Clarksdale, for appellee.
The Delta Grocery & Cotton Company had a right to understand from the waiver that necessary plantation supplies, and supplies for the successful production of the crops, meant such as were usually and generally furnished by the Delta Grocery & Cotton Company and others engaged in like business.
Dr. Somerville must have known as a plantation owner, a certain amount of cash money is necessary to operate a plantation. No laborer would stay on a place without some money. Man cannot live by bread alone. The record shows the custom which all parties knew and must have known. To give the waiver a construction which would defeat the object of the whole arrangement and everyone concerned, would be to give it a construction which is too narrow and which obviously was refused by the learned chancellor below.
To sustain the position of appellant in reference to item of five hundred twenty-one dollars, the agreement must be held to mean that it was understood and agreed that the Delta Grocery & Cotton Company could not sell anything above this amount; and if it did, it could not secure itself by a lien upon the thing sold. The waiver does not say this, nor does any such agreement appear.
Neither can the position of appellant be sustained on any theory of marshaling. Appellant has a lien on the crops. Appellee has a lien on the crops and mules. The doctrine of marshaling of securities does not require that the one having the security on two pieces of property shall not be permitted, if necessary, to proceed to foreclose both of them.
Argued orally by L. E. Farley, for appellant.
Dr. T. H. Somerville, living at Oxford. Mississippi, owned a plantation in Coahoma county, which was leased to E. P. & J. P. Tomlinson. The Delta Grocery Company had been supplying the tenants, but refused to supply them further unless Dr. Somerville waived his landlord's lien, which he did by the following letter:
Subsequently it was agreed that the Delta Grocery Company should handle the cotton on this place, reserve the amount furnished as waived, and pay the balance to Dr. Somerville. Later Dr. Somerville made an additional waiver for two hundred dollars, making a total waiver of four thousand seven hundred dollars. The total amount of the proceeds of the crop was about five thousand dollars. The rent due Dr. Somerville was three thousand dollars payable December 1st, evidence by note.
Dr. Somerville filed his bill to recover the amount of specific items set forth in the bill, and to hold the Delta Grocery & Cotton Company as trustee, for the amount of the proceeds of the cotton in excess of what he claimed was properly furnished under the waiver contract. The court below allowed only the item of interest.
The items objected to, in this court, under the waiver are:
1. Cash advanced, one thousand eight hundred forty-two dollars and sixty-three cents.
2. Drafts, cash, signed by J. P. Tomlinson, six hundred ninety dollars.
3. Cash for a fine assessed against a subtenant of Tomlinson, twenty-nine dollars and thirty cents.
4. Candy, chewing gum, cakes, and merchandise of that kind claimed not to be necessary to the successful production of a crop, four hundred seven dollars and twenty-three cents.
5. It appears from the evidence that, in the items of cash advanced, mules and horses were bought therewith. At the close of the year, Tomlinson sold the mules and horses and paid the proceeds to the Delta Grocery Company. Appellant contends that he is entitled to recover this amount. The Delta Grocery & Cotton Company had a mortgage on the live stock and personal property of the...
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Somerville v. Delta Grocery & Cotton Co.
...& COTTON CO.[*] No. 28169.Supreme Court of Mississippi, Division A.February 16, 1931 On suggestion of error. For former opinion, see 130 So. 95. McGOWEN, On the suggestion of error herein we think proper to make clear the opinion as to the fourth item, in which we approve the finding of the......