Lipscomb v. DeLong

Hart, J., (after stating the facts). It is the contention of counsel for the plaintiff that the court erred in holding that DeLong converted the cotton at the time he sold it and was only accountable to the McArthur estate for its market value on that date. Counsel for the plaintiff insists that Mrs. McArthur did not authorize DeLong to sell it, and that the plaintiff should be entitled to recover the value of the cotton of the date of September 24, 1921, when the administrator requested DeLong to sell it. According to the testimony of DeLong himself, Mrs. McArthur, after her husband’s death, told him to taire charge of the cotton and sell it to the best advantage, and divide the proceeds after deducting the .amount of her husband’s supply account. If DeLong’s testimony is true, he should only be required to account to the McArthur estate for the price for which he sold the cotton. His own testimony shows that this was the best price obtainable at that time, and his testimony is corroborated by that of cotton-buyers. It is not contradicted or attempted to be contradicted by the other evidence in the case. There is no evidence in the case tending to show that he was negligent in selling the cotton at that time, or that he .acted in bad faith in so doing. On the contrary, the evidence shows that he acted in the utmost good faith in the matter. Hence, under his testimony, he should only account to the estate for its share of the proceeds of the cotton. On the other hand, if the testimony of Mrs. McArthur is accepted as true, the result would be the same. Under her testimony, DeLong converted the cotton to his own use when he sold it on the 10th day of July, 1921. The administrator of the estate of Will McArthur, deceased, was entitled to recover the value of the crop at that time, less one-third going to DeLong for rent and the amount of his supply account. Peterson v. Gresham, 25 Ark. 380; Jefferson v. Hale, 31 Ark. 286; Kelley v. McDonald, 39 Ark. 387; and Parks v. Thomas, 138 Ark. 70. DeLong had an interest in the cotton, and the circuit court rightfully held that there was no conversion of it because he carried it from his house and deposited it in his warehouse in his own name for the purpose of storing it. The court was also right in holding that the crop was not converted by DeLong until he sold it on the 10th day of July, 1921. The case of Papan v. Thomason, 156 Ark 231, has no application under the facts presented by the record. Tn that case the tenant was entitled to one-half of a rice crop, and made several demands npon his landlord for a division or a sale of the rice, and the court held that he had a right to treat the date of the last demand and refusal as the date of conversion, and to sue for the value of the rice on that date. Here no demand was made on DeLong to sell the cotton before he did sell it. Therefore he was properly held to account for its value at the market price on the clay he sold it and thereby converted it to his own use. The undisputed evidence shows that DeLong sold the cotton for its highest market price on the. 10th day of July, 1921, and that be accounted to the McArthur estate for its share of the proceeds. The undisputed evidence also shows that the McArthur estate is indebted to him in the sum of $601.02, the amount for which judgment was rendered in his favor against said estate. It follows that the judgment will be affirmed.