Wilkins v. Friedman

Jenkins, P. J. The First National Bank of Quincy, Florida, held a mortgage executed by D. G. Hutehenson on a certain crop of tobacco and other produce growing in Gadsden County, Florida, which mortgage was dated June 20, 1922. The mortgage was foreclosed, after being recorded in Decatur County, Georgia, and the mortgage fi. fa. was levied upon certain tobacco which had been harvested and was in the possession of L. A. Friedman in the latter county. Friedman filed a claim to the property. On the trial it appeared that Friedman had furnished to Hutehenson the necessary supplies and money to make the crop, which was grown on the latter’s land, under an agreement which had been in operation for several years, by which the crop, when matured and gathered, was to be delivered by Hutehenson to Friedman, the latter deducting the advances made and paying over to Hutehenson the balance of the purchase price. No agreement appears to have been entered into as to the price Friedman would pay Hutehenson for the particular crop of tobacco when it was delivered. When the crop matured certain deliveries were made to Friedman by Hutehenson, the tobacco being shipped to him at Bainbridge, Georgia, by truck, when the plaintiff ordered the deliveries stopped. Friedman went to Quincy and discussed the matter with Hutehenson and Key, the president of the bank, who, it appears without dispute, was the executive head of the bank and in charge of its business. It was then agreed between all parties that Friedman should pay a price of sixty-five cents per pound for the tobacco, which price, it is clearly inferable from [144] Friedman’s testimony, was in advance of the market price at the time, the bank consenting, through Key, for the tobacco to be delivered to Friedman. Friedman testified that under the agreement whereby the bank waiyed its mortgage, he was to take only the sound part of the tobacco at sixty-five cents per pound; while the contention of the-bank was that- he was to take the entire crop at that price. After the tobacco levied upon had been delivered to Friedman by Hutchenson, the former refused to accept any more, giving as his reason therefor that the tobacco was off grade; whereupon the bank foreclosed its mortgage, and Friedman filed his claim, setting up his contentions with reference to his alleged contract with Hutchenson made prior to the execution of the mortgage, and the alleged release by the bank. The jury on the trial found the property not subject, and the plaintiff filed a motion for a new trial; pending a hearing a receiver was appointed for the bank and made party plaintiff, and the receiver now excepts to the order overruling the motion for a new trial. Judgment reversed. Stephens and Bell, JJ., concur.