Judd v. Delta Grocery & Cotton Co.

Sykes, J., delivered the opinion of the court. [881] The appellant, F. E. Judd, sued the appellee, Delta Grocery & Cotton Company, in the circuit court for the sum of eight thousand dollars. The material averments of the declaration are that plaintiff (the appellant) is the owner of a certain plantation in Coahoma county which he rented to his son, E. W. Judd, for the year 1920 for the sum of eight thousand dollars evidenced by his promissory note which is past due and unpaid; that E. W. Judd delivered to'the defendant (appellee) one hundred thirty-three hales of lint cotton during the latter part of the year 1920 which was raised on the leased premises; that defendant sold and disposed of this cotton, but has failed to pay the rent to the landlord; that plaintiff held a lien on this cotton; and that he has a cause of action against the defendant because the defendant sold and disposed of this cotton. There was á plea of the general issue, and notice of special matter was set up. In this notice it-whs stated that the defendant was a cotton factor, engaged in the handling and sale of cotton delivered to it; that during the year 1920 it lent certain money to E. W. Judd and took a deed of trust on his cotton crop for that year, stipulating that it was to he shipped to the defendant, sold by it, etc., that ’it had no actual knowledge of any rent due the plaintiff for that year; that it disposed of the cotton in accordance with its deed of trust, and duly accounted to E. W. Judd therefor; that the plaintiff, F. E. Judd, permitted his tenant and son, E. W. Judd, to dispose of the crop. It is unnecessary to go further into the details of the special matter elaborately set out. The cause was first tried, and a peremptory instruction was given the appellant. A motion for a new trial was duly made, and an agreement of counsel entered into, whereby at least upon this motion the court could determine as a matter of law whether or not either side was entitled to a peremptory instruction. On this mo [882] tion. the court gave a peremptory instruction in favor of the appellee. There is some controversy between the parties as to whether or not this was in fact a peremptory instruction or the agreement was for the court to decide both law and facts. For the purpose of this opinion, however, we will treat it as a peremptory instruction given the defendant. From such judgment this appeal is prosecuted. It is only necessary for us to consider on this appeal one question, and that is, whether the appellant, F. E. Judd, by his course, conduct, and dealing for several years, including the year in controversy permitted his tenant and son, E. W. Judd, to dispose of the crops raised upon the leased premises and pay the rent out of the proceeds derived from a sale of the crops; whether the testimony in this case does not show that the landlord, with express knowledge, permitted the tenant to dispose of the crops, and thereby constituted him his agent for their sale and is not now estopped to assert a landlord’s lien. The testimony in this case shows that E. W. Judd had rented this plantation from the appellant for at least four years, for an annual money rent; that durin'g all of this time the tenant, with the knowledge of the landlord, disposed of the crops. The appellant, F. E. Judd, testified that he did not supervise E. W. Judd in the handling of the cotton, and permitted him to sell the cotton and remit to him (the landlord) the rent; that that was the way he had always done since 1917. The effect of this testimony is repeated many times in the examination of the appellant. There is also testimony in the record of the appellant that during the fall of 1920 he received a letter from his son, stating he had disposed of a certain number of bales of cotton, and clearly showing that he (the tenant) was in entire control of the cotton, and disposed of it as he saw fit. In short the [883] record shows that the course of dealing between the landlord and tenant was that the tenant disposed of the crop with the knowledge of the landlord, that the landlord asserted no rights as to its disposition, but permitted the tenant to control it, and that the tenant paid-him money rent for the place. This course of dealing, this knowledge and permission of the landlord, constitute in effect an appointment of the tenant as his agent to dispose of the cotton on which the lien existed. If the tenant failed to carry out this trust and pay the rent, then the loss must fall on the landlord who clothed him with this authority, rather than on an innocent party. This doctrine is announced in the case of Seavey & Sons v. Godbold, 99 Miss. 113, 54 So. 838. As this question disposes of the case, it is unnecessary to go further into details, or consider any other questions argued by counsel. The judgment of the lower court is affirmed. Affirmed.