Lake v. Gaines & Co.

STONE, J. There was a motion in the circuit court to strike the amended complaint from the file, and an exception to the action of the court in overruling the motion. We find but one count of a complaint in the transcript, and can not tell whether it is an original or an amended count. This exception must be disallowed, because there is nothing in the record by which we can determine whether or not there was error in the ruling. Error can not be presumed, but must be affirmatively shown.—Mc Williams v. Phillips, 71 Ala. 80. Gaines, one of the plaintiffs, being examined as a witness, was asked on cross-examination, “ If he had not, since this suit was brought, received from Abe Lassiter $20.70, which he had not paid over to Mr. Lake.” This was objected to, and ruled out. What relation this had, or could have to the case is not shown. Without stating any further objection to the testimony the question tended to elicit, it is enough that the record nowhere shows Lake was entitled to the money, or that Gaines was under any obligation to pay it out to any one. If any connecting facts could have been shown, which would have rendered the testimony relevant, the defendant, when the objection was made, should have informed the court in what manner he proposed to connect the testimony, so as to show its relevancy. — 1 Brick. L)ig. 809, §§ 83, 84. And if the connecting testimony is not afterwards introduced, then the testi [146] mony thus received should be ruled out, on motion of the opposite party. There was objection sustained to testimony proposed to be given by Lake as a witness, the extent of which we can not understand. We can not know whether the rejection and exception related to the whole of the testimony previously stated, or only to a part ; and if a part, to what part. Some of the mass of his testimony was legal, and some illegal. PritcliettVthreat to seize two bales of the cotton was clearly illegal, and other portions of the evidence were irrelevant. In the state of this record, we can not pass on this question. — 1 Brick. Dig. 247, §§ 72, 73. The only remaining question relates to the charge of the court, which was given at the written request of plaintiffs. Submitting the question of the credibility of the witnesses to the jury, this charge pronounced on the legal effect of the evidence. During the year 1879, IT. L. Gaines, using the name of H. L. Gaines & Co., was engaged in merchandising, and also owned a plantation, of which one Scott became tenant for that year. Gaines made advances to Scott as his tenant, and at the end of the year, after paying the rent, there was a small unpaid balance of the debt for advances. On the 1st January, 1880, one V. P. Gaines became part owner, or tenant in common with H. L. Gaines in said plantation, and Scott renewed and continued his lease for that year, and TI. L. Gaines continued to advance to him as tenant. In March, 1880, Y. P. Gaines became a partner in the mercantile establishment, and it continued business in the firm name of II. L. Gaines & Co., and continued to advance to Scott as their tenant. The same relation was continued through the year 1881, and some advances were made during that year. At the time the new mercantile firm was formed in March, 1880, the old firm, consisting of II. L. Gaines alone, transferred the claim on Scott for a,dvauces to the new firm, consisting of IT. L. and Y. P. Gaines, who are the plaintiffs in this action. There was a small balance due for advances, as we have said, for the year 1879, and there were advances made by Gaines between the 1st of January. 1880, and March of that year, when Y. P. Gaines became a partner. The advances made during this interval were probably a fraction over one hundred dollars. Including the small balance due for advances in 1879, the amount for advances March, 1st, 1880, when Y. P. Gaines became a partner, is claimed to have been one hundred and seventeen dollars; and such is the tendency of the testimony. At the end of the year 1880, the account for advances, as the testimony tends to show, was four hundred and ninety dollars. Three was then paid by Scott, by sale of cotton, something over two [147] hundred and seventy dollars, leaving an unpaid balance of two hundred and sixteen dollars. There were also items of charge for the year 1881, swelling the account to the sum sued for. In the spring of the year 1881, Scott made arrangement with Lake & Marshall to make him advances that year, to en'able him to make a crop ; and gave them a crop-lien note, and mortgage on his crop, to secure payment for such advances. These papers were duly acknowledged and recorded. He obtained from them between four and five hundred dollars in advances, under this contract. At the time Lake & Marshall entered into the contract to advance, they knew Scott was tenant on'the lands of plaintiffs ; and when they received the cotton after mentioned, they knew it had been grown in 1881, by Scott, on lands rented from Gaines & Co., and that Gaines & Co. claimed a lien on it for advances made as landlords. They received nine bales of the cotton so grown, sold it, and applied the proceeds to their claim against Scott. This suit was instituted by Gaines & Co. to recover so much of the proceeds of the cotton as was necessary to pay them for the balance of the advances made by them. The statute giving to a landlord a lien on the crop of his tenant for advances, is paramount to, and much more comprehensive than the lien a stranger may contract for, under what is known as the crop-lien law. — Code of 1876, §§ 3467, 3286. Under the section last cited, a lien, to be effective, must be declared in writing and recorded, and can only be created and enforced, for “advances in horses, mules, oxen, necessary provisions and farming tools, or money to purchase the same.” Beyond articles falling within these enumerated classes, a stranger to the contract of letting can acquire no valid crop-lien save by mortgage. Not so with the landlord. He requires no written declaration of lien, but the sum is secured to him by law, as an incident to the letting. In addition to the rent for the current year, he has a lien “for advances made in money or other thing of value, whether made directly by him, or at his in-stance and request by any other person, or for which he has assumed the legal responsibility at or before the time at which such advances were made, for the sustenance or well being of the tenant or his family, for preparing the ground for cultivation, or for cultivating, gathering, saving, handling, or preparing the crop for market.” These are certainly very comprehensive words, and we would find it very difficult to define, as matter of law, what articles of commerce are beyond the pale of these comprehensive words. We will not now undertake to draw the line. So, if the advances are not paid for in the current year, the residuum becomes a lien on the next crop, if the tenancy continues; and the landlord may assign his [148] claim, with all its liens and remedies, to another. — Code, §§ 3469, 3470. It would seem that the articles which go to make up plaintiffs claim, on which they base their right to recover the proceeds of the cotton, are, none of them, shown to be outside of the provisions of the statute ; and hence, if the testimony was believed, plaintiffs were entitled to recover the amount of Scott’s debt to them for the advances made to him, with interest thereon, not to exceed the amount Lake & Marshall realized from the sale of the cotton, with interest thereon. ■ And if any question arises as to the right to recover for the goods advanced before March 1st, 1880, must not that portion of the account be considered as paid, and eliminated from this suit, under the principle declared in Lee v. Tannenbaum, 62 Ala. 501, and Lewis v. Dillard, 66 Ala. 1? We find no error in the record, and the judgment of the circuit court must be affirmed.