Holden v. Collier , 5 Ga. App. 555 ( 1909 )

Hill, C. J.

(After stating the foregoing facts.)

1. If the judgment allowing as a set-off the $72 was erroneous, because, when this sum was added to the original amount pleaded as a set-off, the total amount claimed by the defendant on this account exceeded the jurisdiction of the justice’s court, the error was entirely eliminated when the sum of $72 was written off by him from the judgment in his favor, in pursuance of the order of the court on the motion for new trial. The writing off of this sum also disposed of the alleged error in refusing to grant the plaintiffs a continuance because they claimed to be surprised by the amendment, setting up this sum as an additional item of set-off.

2. The ruling of the court in excluding evidence as to the debts which Harris, the tenant of the defendant, owed to the plaintiffs prior to the year 1907 was clearly right. The transfer of the landlord’s lien of the defendant to the plaintiffs was expressly for the purpose of securing the plaintiffs for all advances and supplies furnished by them to the tenant to make the crop of 1907. The debts secured hy the transfer were the debts incurred by the tenant of the transferor for the year 1907. Such were the explicit terms of the contract; and parol evidence was not admissible to vary or change these terms. After the debts due to the plaintiffs by the tenant for supplies and advances for the year 1907 had been fully' paid out of the proceeds of the lint cotton up to the limit of 4,000 pounds, if there remained any excess in the hands of the plaintiffs arising from the sale of this lint cotton, they held it in trust for the defendant, who was entitled to have it paid to him on his claim for rent; and the plaintiffs had no right, in law or equity, to appropriate it to the payment of any debt which they held against the tenant prior to the year 1907, and in which the landlord was in no wise interested.

3. The undisputed evidence shows that all the debts for supplies and advances furnished by the plaintiffs to the tenant, Harris, for the year 1907, and secured by the transfer of the defendant’s lien as landlord, were fully paid by the proceeds of the lint cotton delivered to them by the tenant according to the terms of *the transfer made to them by the defendant. The excess in the hands of the plaintiffs, realized from the proceeds of the lint cotton, after the payment of the debts for 1907, belonged to the defendant; and the verdict directed for this excess, .as modified by the order of the court requiring the defendant to .write off the $72 from the verdict, was demanded by the evidence.

Judgment affirmed.