H. & C. Newman, Inc. v. Delta Grocery & Cotton Co.

* Corpus Juris-Cyc. References: Appeal and Error, 4 C.J., p. 1104, n. 41; Landlord and Tenant, 36 C.J., p. 484, n. 80 New; Money Received, 41 C.J., p. 39, n. 55; p. 40, n. 58. The appellee, Delta Grocery Cotton Company, a corporation under the laws of this state, filed its bill in the chancery court of Coahoma county against the appellant, H. C. Newman, a corporation under the laws of the state of Louisiana, to recover the sum of five hundred dollars with interest. There was a trial on the pleadings *Page 881 and proofs resulting in a decree in favor of the appellee for the amount sued for, with interest. From that decree, appellant prosecutes this appeal. This is the second appearance of this case in this court. The report of the case on the former appeal will be found in138 Miss. 683, 696, 103 So. 373, and 104 So. 157. The first appeal was prosecuted to settle the principles of the cause. On that appeal there was an original opinion of the court, followed by an opinion in response to a suggestion of error. The following is deemed a sufficient statement of the case as is now before the court: The appellant owned two tracts of farm land in Coahoma county, one known as the Ward-Lake place, and the other as the Hendrick's place. The appellant leased both of these places to Arthur Collier for the years 1923 to 1925, inclusive, for the rent of which Collier agreed to pay the appellant the sum of two thousand dollars per year, due and payable November 1st of each of said years, and gave his three notes to appellant accordingly. After leasing the land from appellant, Arthur Collier subleased the Ward-Lake place to Will Mix for the year 1923 for the sum of five hundred dollars, for which sum Mix gave his note to Collier, payable on November 1, 1923. Mix's note was dated February 21, 1923. Collier thereupon delivered the note of Mix to appellant, with this indorsement below Mix's signature to the note, which indorsement was signed by Collier: "For rent Ward-Lake place per contract of which this is a part." Collier was unable to supply his tenants on these lands for the year 1923 to enable them to cultivate the lands. This fact was brought to the knowledge of the appellant, and, in order to induce appellee to furnish Collier the necessary supplies for that purpose, appellant executed and delivered to appellee a written waiver in the following language: "Know all men by these presents that whereas, heretofore, to-wit, on the 6th day of November, 1922, H. C. Newman, Inc. (a corporation chartered and existing *Page 882 under the laws of the state of Louisiana), leased and demised to Arthur Collier, of Farrell, Miss., certain land belonging to the said H. C. Newman, Inc., situated in Coahoma county, Miss., known as the Ward Lake place and the Hendrick's home place, particularly described in a lease agreement dated the said 6th day of November, 1922, executed by the said H. C. Newman, Inc., and the said Arthur Collier, to which reference is hereby made for full particulars; and whereas, the said Arthur Collier desires to obtain advances of money and supplies with which to make a crop on said land during the year 1923: Now, therefore, in order to enable the said Arthur Collier to obtain such advances of money and supplies, in the amount of not exceeding twelve hundred dollars ($1,200), during the year 1923, the said H. C. Newman, Inc., hereby waives, to the extent of twelve hundred dollars ($1,200), but no further, in favor of any person, firm or corporation furnishing to the said Arthur Collier, during the said year 1923, for use on the lands aforesaid, money or supplies not exceeding in the aggregate the sum of twelve hundred dollars ($1,200), all liens as landlord or otherwise to which the said H. C. Newman, Inc., may be entitled, on any and all crops grown, raised, or produced by or for the said Arthur Collier on the lands aforesaid during the said year 1923. It is distinctly understood and agreed, however, that except as to the sum of twelve hundred dollars ($1,200) in money or supplies to be furnished the said Arthur Collier, as aforesaid, for use on the lands aforesaid, during the year 1923, as aforesaid, said H. C. Newman, Inc., hereby reserves, retains, and does not in any manner waive, release, or subordinate any and all rights, remedies, liens, and privileges to which it is or may be entitled, as landlord or otherwise, on or against any and all crops grown or produced on said lands during said year 1923. In testimony whereof this instrument has been executed on behalf of said H. C. Newman, Inc., *Page 883 by Paul Kling, its secretary-treasurer, on this the 26th day of February, 1923." Before the delivery of the waiver by appellant to appellee, the five hundred dollar rent note of Mix had been delivered by Collier to appellant, but this was unknown to appellee; and, after the execution and delivery of the waiver by appellant to appellee, Collier excuted a deed of trust in favor of appellee which conveyed all the crops to be grown by Collier and his tenants on both tracts of land during the year 1923, and, in addition (quoting from deed of trust), "all rights, liens, and claims to and on said crops that he may at any time have." There was further conveyed by the deed of trust, as security for the supplies to be advanced by appellee, certain farm implements and live stock. After exhausting all the securities covered by its deed of trust, including the crops therein conveyed, appellee lacked more than the amount sued for in this case of realizing the sum of $1,200 out of such crops. Appellant contends that, so far as the crops of the subtenant were concerned, Collier's deed of trust to appellee conveyed nothing, because at the time of the execution of the deed of trust Collier had no interest in the crops of Mix; that, by his transfer of Mix's rent note to appellant, Collier parted with all interest he had in the crops of Mix, and therefore appellee, by its deed of trust, took nothing. Appellee contends, however, that appellant was estopped, by the waiver of its landlord's lien in favor of appellee, to contend that Collier's deed of trust in favor of appellee conveyed no interest in the crops of Mix. We think appellee's position is sound. It was held in Dreyfus v. Gage, 84 Miss. 219, 36 So. 248, that an assignee of rent notes, given by a tenant to his landlord, was estopped to assert the priority of his landlord's lien against one who made advances to the tenant on the security of the landlord's waiver of his lien and the tenant's trust deed on the crops to be grown on the leased *Page 884 premises, where such assignee had failed to divulge, to the person so making the advances and taking the deed of trust to secure the same, his ownership of the rent notes, thereby inducing the person so advancing the tenant to believe that the landlord's waiver and tenant's trust deed operated to give him a first lien on the crops. We think this case is strongly in point in favor of appellee's position. This question was not directly decided in Chism Bros. v. Alcorn, 71 Miss. 506, 15 So. 73, but the principle involved was discussed in this language: "The plaintiffs testified in their own behalf, and positively denied that Mrs. Alcorn, either through her agent or personally, ever agreed to be bound for the payment of the account on which the suit is brought. Their cause of action, as stated by them, is not that she promised to pay and has neglected and refused to do so, but that she agreed to waive her lien, as landlord, upon the crops of Bush, her tenant, and that Bush might apply it to the payment of his account, and afterwards, in violation of that agreement, received the cotton grown by Bush and appropriated its proceeds to her demand for rent. If they had sued for money had and received to their use, or in action on the case, their testimony would have tended to support their action." Appellant, by its waiver, induced appellee to extend credit to Collier, the tenant of appellant, to the extent of one thousand two hundred dollars. By the waiver appellee was led to believe that it could acquire a valid deed of trust on all of Collier's interest in the crops by whomsoever produced on the leased premises, and that such deed of trust would be paramount to the landlord's lien. The waiver could have meant nothing less than that to appellee. On the faith of the waiver, appellee took a deed of trust on Collier's interest in the entire crop. At the time the deed of trust was taken, it is true that Collier had no interest in the crops of Mix by virtue of the fact that he had transferred to appellant Mix's rent note; but appellant will not be heard to say that Collier's *Page 885 interest in the crops of Mix had gone in that manner. Appellant is estopped by his waiver to so contend. At the time of the execution and delivery of its waiver, appellant was called on to speak on this subject — to divulge the fact that Collier had no interest in Mix's crops because the former had transferred the latter's rent note to appellant. Collier was insolvent. Mix, with the consent of appellant, sold his crops and paid appellant out of the proceeds thereof his rent note of five hundred dollars. Appellee's only remedy, therefore, for the recovery of the rent of five hundred dollars which Mix agreed to pay Collier and which appellee was entitled to under its deed of trust, was to sue appellant therefor. Appellee was entitled to recover under the well-established principle that, where one person receives money which by right belongs to another person, the person entitled thereto may recover it. It may be recovered as money had and received by appellant for the use of appellee. The law implied a promise on the part of appellant to pay appellee the amount so received. Roberts v. Ely, 113 N.Y. 131, 20 N.E. 606; Stanton v. Thomas, 24 Wend. 70, 35 Am. Dec. 598; Allen v. Mendelsohn Son, 207 Ala. 527, 93 So. 416, 31 A.L.R. 1063; Farmers' Bank Trust Co. v. Shut Keihn,192 Ala. 53, 68 So. 363. Appellant contends, however, that on the former appeal of this cause to this court, which appeal was granted to settle the principles of the cause, the court, in its response to the suggestion of error, declared the governing principles of law to be the exact converse of what the court is now holding in this case, and that the principles therein declared are the law of the case and must govern. It is true that the court said, in response to the suggestion of error on the former appeal, that, if Collier did not own the note at the time he gave the deed of trust to appellee and did not hold a lien against the crops of Mix at that time or thereafter, the title to the note of Mix did not pass to appellee by the deed of trust. It is *Page 886 also true, as contended by appellant, that that statement by the court embodied a principle in conflict with what the court is now holding, but the statement was dictum as the cause was then before the court on its pleadings alone for the purpose of settling the law of the case as presented by the pleadings. The question as to the effect on the rights of the parties of the fact that Collier had parted with Mix's note when he executed the deed of trust in favor of appellee was not presented by the pleadings, and therefore not involved in the case. It follows that the statement by the court referred to does not constitute the law of the case. The judge who wrote the opinion in response to the suggestion of error did so without the brief in favor of the suggestion of error having been responded to by the other side. In that way he was probably led into stating a principle that was not called for by the case before the court. Affirmed.