Brooks v. Cunningham

TAkbell, J., delivered the opinion of the court: Brooks being the owner of a plantation in the county of Nankin, leased the same to Cunningham, who agreed to pay rent at the rate of “ one bale of cotton, weighing five hundred pounds, for every twenty acres of land ” described. It ivas further agreed, that said “ bales of cotton are to be put üp from the early pickings, and delivered to Brooks, in good order as early as practicable, and which said bales of cotton are to all intents and purposes to belong to Brooks, and not subject to any lien made or given by Cunningham to any person whatsoever.” Cunningham failing to pay according to contract, Brooks made oath near the close of the year, that Cunningham was “ indebted to him seven bales of cotton, weighing five hundred pounds each, for rent due and in arrears for one hundred and fifty acres of land, * * . * being at the rate of one bale of cotton for every twenty acres of land, and that said ■cotton is worth $525, and that said Cunningham is due him said sum of $525 for the rent so due, as aforesaid.” Upon this affidavit an attachment was issued, upon which three bales of cotton and ten thousand pounds seed cotton Were seized, when Cunningham caused the cotton so seized to be restored to him by writ of replevin, and thus the issue between these parties came on to be heard in the circuit court of Rankin county. The result of the trial was determined by the ruling of the court, upon the right of the defeiidant to prove the value of the cotton. Evidence of this value was excluded, and instructions were given to the jury “ that distress .for rent only obtains when the shin agreed to [115] be paid is stipulated, fixed, and certain; and if “the jury believe, from the evidence, that Cunningham agreed to pay in produce, and that there was no value, price, or fixed,and certain sum attached to, or placed upon the produce agreed to be paid, then a distress would not lie, and the jury should find for the plaintiff.” Thus instructed, the jury returned a verdict for the plantiff in replevin. There were exceptions, and a motion for a new trial was overruled. Thereupon a writ of error was prayed, and the judgment of this court is invoked upon the law of the case. Several errors are assigned, unnecessary to be referred to in detail, as the case involves a single question only. Briscoe v. McElween, 43 Miss., 556, is relied upon for the ruling on the trial of the case at bar. That case must be construed with reference to the facts on which it was determined, viz.: Briscoe,let McElween have an orchard-field, containing twenty or tWenty-five acres, for which McElween agreed to build a fence around the field and trim the orchard trees, but no time 'was named in which to build the fence. Briscoe was to haul the posts for the fence, which he neglected to do. For the cow lot, containing' about two acres, Briscoe agreed to pay ten dollars and build a fence around it, which he did; and for the gin field, containing about nine acres, he was to fill the washes in the gin field. .The character of the fence was not agreed upon — -whether brush, boards, or rails, etc. The trimming of the trees was ■still more indefinite, as the amount of labor to be bestowed, the mode, manner, and extent of trimming, was utterly incapable of determination. So of the washes. With what to be filled, and the mode and manner of the work, are uncertainty itself. There was no data, no standard, no fact, by which the value of this labor and these repairs could be ascertained. It was in view of the utter absence of any and .all means of arriving at the value of the rent, in that case, that the opinion of the court was pronounced. The services in which the rent was payable, were neither certain nor [116] capable of being reduced to a certainty. Hence the opinion of this court. In the case at bar, the contract of lease was in writing, and it was agreed, that the rent should be one bale of cotton, weighing five hundred pounds, to be put up from the early pickings, and delivered to the landlord, in good order, for every twenty acres of land, within a certain enclosure, the whole number of acres cultivated to be thereafter determined. Cotton has a certain commercial value from day to day, and its price, with other produce, stocks and coin, are quoted by telegraph, throughout the country, daily. The value of the rent, therefore, was capable of exact and positive calculation. In Smith v. Colson, 10 Johns., 91, it is said, “A landlord may distrain for services, as well as for money due by way of rent; and the books specify a variety of services and duties for which the party had this remedy at common law. The great principle was, that the service be certain, or capable of being reduced to certainty, so that, upon the avowry, the lord might be able to, ascertain and recover the damages for non-performance. If a tenant held of his lord by the service of shearing the sheep of the manor, the lord might distrain for the service.” The same views are more fully expressed in Valentine v. Jackson, 9 Wend., 302, wherein the court say, “ It is said the services or rent for which the landlord or lessor may distrain, must be certain, or such as may be reduced to certainty; for, otherwise, he cannot, in his avowry, recover damages for the non-performance or non-payment, as the jury cannot determine what damage he has sustained. Co. Litt., 96; Bac., 342, Tit. Distress; 10 Johns., 91; 20 Com. Law R, 195; Bac., Tit. Rent. But if a tenant holds of his lord to shear all his sheep feeding in a certain manor, this is sufficiently certain, as it is easy to compute the number, and the expense to which he is subjected in employing others to do the service. At common law, distresses for rent in arrears could not be sold, but were detained as pledges to enforce [117] the payment, if in money; or performance, if in services. Bac., 349. Tit. Distress ; 1 Selw., N. P., 503 ; Bac., Tit. Rent. And these pledges were held until payment or performance, unless the tenant, l-eplevied, which shows sufficiently the reason why the rent should be certain, and the nature and degree of certainty requisite; for, otherwise, the tenant would be unable to tender payment or performance. If the rent is payable in money, he sho.uld be enabled to ascertain the sum to be paid; if in services, the extent to be rendered. This he might do if he held for the service of a certain number of days’ work, ploughing, etc., or by any qther service certain, or which could be rendered certain, as shearing all the sheep in the lord’s manor. This affords a much more satisfactory reason for the certainty required in the rent than the one generally given in the books, to-wit: To enable the landlord, in the avowry, to recover damages before the jury for non-payment or non-performance by the tenant.” In Smith v. Tyler, 2 Hill, 648, the very learned court sitting in that case, Held: That “ rent is deemed certain, within the law authorizing landlords to distrain,, if capable of being rendered certain,” quoting, “Id cerium est quod cerium reddi potest,''' and saying, “ This rule is not changed by the revised statutes.” These rules are thus stated in Taylor’s Landlord and Tenant, § 561: “ There can be no distress unless there be an actual demise, at a certain fixed rent, either in money, produce, or services, payable at a time certain; or, unless the amount, if not fixed, is capable of being reduced to a certainty by calculation. As when the rent is payable in repairs, to be put upon the demised premises, to a certain specified amount; or to shear all the sheep depasturing in the landlord’s manor, by way of rent, without putting it at a certain value in money, in the lease, although the number of sheep may vary from, time to time; for this is capable of being reduced to a certainty by referring to the usual number of sheep, and then calculating the price or value of shearing them. But this mode of computation is to be taken. [118] with the qualification that it must not be subject to continual deductions, as for the erectioú of new buildings, or the like.” In Briscoe v. McElween, there was no standard by which even to approximate the value of the rent, or the services, neither being fixed, nor capable of calculation, under the agreement; and this is the key to that case. On the other hand, in the case at bar, the contract is in writing, and the produce to be paid in lieu of rent, is. so definitely stated, that the amount in money is capable of accurate and exact calculation. It may be likened to the case where a man borrows the cash which a certain quantity of stock realizes on the day he receives the money, and covenants to replace the same quantity of stock on a defined future day. This is a contract certain / because it can be ascertained to a demonstration on the day the money becomes payable, as can the value or price of cotton on any day during the season. These views settle the case at bar, in accordance with the most approved authorites, and established rules adopted to the sitution and needs of our people. Judgment reversed, and cause remanded.