West v. E. V. Cook Mercantile Co.

• Decision Date: 19 March 1923
• Docket Number: 239
• Citation: 249 S.W. 561,157 Ark. 600
• Parties: WEST v. E. V. COOK MERCANTILE COMPANY
• Court: Arkansas Supreme Court

249 S.W. 561

157 Ark. 600

WEST v. E. V. COOK MERCANTILE COMPANY

No. 239

Supreme Court of Arkansas

March 19, 1923

Appeal from Pope Chancery Court; W. E. Atkinson, Chancellor affirmed.

Decree affirmed.

U L. Meade and John M. Parker, for appellant.

Appellant had the right to buy the cotton when he did purchase it at the agreed market price, and because he held same till the price advanced and realized from its sale $ 2,200 more than the amount of the rent of his farm he was not liable either to his tenants, their mortgagees or furnishers of supplies for the overplus. No fraud is allleged in the purchase of the 84 bales by West from Savage, which must be both charged and proved to vitiate sale. Jackson v. Reeve, 44 Ark. 496. Never presumed. Ferguson v. Little Rock Trust Co., 99 Ark. 45; Huff v Roane, 22 Ark. 184. Hankins made no tender of rent. Bloom v. McGee, 38 Ark. 329. Should have done so and brought replevin for cotton. Buck v Lee, 36 Ark. 525; Lemay v. Johnson, 35 Ark. 231; Roth Co. v. Williams, 45 Ark. 477; Noe v. Layton, 69 Ark. 551; Jacobson v. Atkins, 103 Ark. 91. Demurrer should have been sustained and action dismissed as to certain parties.

Hays, Wood & Hays and J. T. Bullock, for appellees.

Appellant undertakes to present a different case here that was tried by chancellor. The cases were based alone on conversion. Appellant had no legal right to purchase crops grown on his lands in disregard of junior lien holders of whose rights he had notice by the recorded mortgages. Peoples v. Hayley-Beine & Co., 89 Ark. 215; Robinson v. Cruce, 29 Ark. 275. West had wrong conception of a landlord's rights, claiming he would hold each tenant's cotton until entire rent was paid. Storthz v. Smith, 109 Ark. 552. The evidence abundantly supports the judgment, which should be affirmed.

U. L. Meade, John M. Parker, in reply.

Reargue testimony controverting appellee's position; cases cited not applicable, there being no surplus over rent due when cotton purchased. Appellant claims the cotton because he purchased it from Savage, who raised it, and received it in payment of the rents, and from tenants consenting to and authorizing the sale. Proof shows cotton sold to pay debt due purchaser and at market price. Gilverson Gloriscina Co. v. Curnes, 56 Ark. 414; Anderson Co. v. Bowles, 44 Ark. 108; Meyer v. Bloom, 37 Ark. 43. Mortgagee of tenant has no greater right than tenant and entitled only to what remains after rent paid. Bourland v. McKnight Bros., 79 Ark. 427.

OPINION

SMITH, J.

B. F. West owned a farm of 550 acres in Pope County, which he rented to J. A. Savage for the year 1920 for $ 5,500. Savage subrented 140 acres of the land to J. M. May for $ 1,400. To obtain supplies and assistance to make a crop, May gave a mortgage on his crop and certain livestock and other personal property which he owned, to the E. V. Cook Mercantile Co. Advances secured by this mortgage, amounting, with interest, to $ 289, were made to May. Savage subrented 172 acres of the land to T. J. Hankins for $ 1,700. Hankins cultivated the land and made a crop, but after doing so sold his interest therein to W. D. and O. J. Whitlock, and took a mortgage back to secure the purchase money. The sum claimed by Hankins under his mortgage was $ 614.25.

Savage received from the subtenants 84 bales of cotton, all of which he turned over to West first, under a writing signed by Savage, dated April 21, 1921, authorizing West to sell the cotton when he thought best. West did not sell under this authority, and on July 2, 1921, Savage executed to West a bill of sale for the 84 bales of cotton in satisfaction of his rent, except that as to two of the bales West was to account to one Oscar Wilson for one-fourth of each of the two bales. At the date of this bill of sale the market price of the cotton was so low that, had it been sold at the prevailing price, the proceeds would not have paid the rent due West, who claims he should not be charged with a higher price for the cotton, although he admits that, after holding for some months, he sold it for $ 7,451.74.

The Cook Mercantile Co., as mortgagee of May's interest, sued West to recover the value of May's crop in excess of the rent due by May, and Hankins brought a similar suit as to the Whitlocks' crop. The cases were consolidated and tried together, and there was a decree for each of the plaintiffs, and the cases are here as one appeal.

The controlling question in the case is whether West should be required to account for the cotton at the market price prevailing on July 2, 1921, or at the price he received for it.

There is testimony to the effect that West did not claim to have bought the cotton from Savage, but was holding it for the...