Dillon v. Patterson & Bell ( 1888 )

Cooper, J.,

delivered the opinion of the court.

The court erred in directing the jury to find for the defendant.

The defendant, without the consent of the landlord, took charge of the. crops grown oh the demised premises, under purchases from the tenants, and retained possession after the rents were due. The crops were removed from the houses in which they had been stored by the tenants, and placed in the gin-house situated on the same plantation, but not upon the leased land. The landlord, apprehending danger from fire, objected to such disposition of the property, whereupon the defendants stated that they would take all risk of such injury, and the landlord, in reliance upon this assumption, forbore to act. "We do not see what influence the statute of frauds has upon the question involved. There was no promise to pay the debt of a third person (the tenant),- but a simple agreement by the defendants, who were in possession of property upon which the landlord had a lien, that they would' have the property forthcoming to respond to his demand for rent, and would bear the loss if it should be destroyed by fire, as the landlord feared it would if left in the place where it had been deposited by the purchaser. We do not perceive anything illegal in the agreement of the parties, nor is, there anything in the statute of frauds that required the contract to be in writing. The danger of loss to the landlord by reason of the destruction of the property by fire, and the advantage to the defendants in being permitted to deal with it as they desired, formed a sufficient consideration to uphold their promise to bear the loss in event the property should be lost by fire. Since the loss has resulted, it may seem hard that defendants should pay so much for so small a consideration, but the risk also seemed small when responsibility was assumed, and, but for the agreement of the -defendants, it is but fair to assume that the landlord would have protected himself by a resort to other remedies. In any event, a recovery of the value of the property destroyed to the extent of the lien of plaintiff upon it is within the terms of the agreement.

The judgment is reversed and cause remanded.