Powell v. Smith , 74 Miss. 142 ( 1896 )

Whitfield, J.,

delivered the opinion of the court.

The demurrer was properly overruled. This court has held that the landlord may recover the value of agricultural products on which he has the. statutory lien, whether the purchaser thereof in open market has notice or not. Eason v. Johnson, 69 Miss., 371; Newman v. Bank, 66 Miss., 323. It follows, inescapably, that the same rule must be applied to the lien of the employe or other person ‘£ aiding by his labor to make, gather or prepare for sale or market any crop, ’ ’ etc., and that this lien must be co-extensive and reciprocal with the lien of the landlord. The statute (§ 1183, code 1892) makes the removal of products subject to the lien, whether of the employe or employer, a crime, and the same crime, punishable alike.' The language of § 2682, defining the lien of the employe, is:'“Such liens shall be paramount to all liens and incumbrances or rights of any kind created by or against the person so contracting for such assistance, except the lessor of the Jand for rent or supplies;” and that of §2495, defining the landlord’s lien, is: “This lien shall be paramount to all other liens, claims or demands upon such products.” If there be any difference as to the extent of the two liens, it would seem that the employe’s is the'broader. Both are creatures of the statute, neither requiring record, but the statute charging, of itself, all the world with notice of the existence of the lien. Both are assignable, and the assignee under each has the same rights as the assignor had. Kerr v. Moore, 54 Miss., 286; Taylor v. Nelson, 54 Miss., 524; Newman v. Bank, 66 Miss., 323. Section 2683 provides that the employe’s lien ‘‘ shall exist by virtue of the relation of the parties, and without any writing,” or record, if written.

In Buck v. Payne, 52 Miss., 271, it was said that “the policy of the statute is to make sure to the laborer his wages, ’ ’ and, in Irwin v. Miller, 72 Miss., at page 177, that “the primary and principal purpose of this section [2682] is to afford security to agricultural laborers, ’ ’ in which case the benefit of the lien was extended to a ginner. In view of the fact that our people are mainly agriculturists, and of this unbroken course of legislation and decision, it is impossible to hold that the lien of the employe or other person does not have equal scope with that of the landlord. The inconveniences, real or supposed, to flow from this — the argument ab ineonvenienti — whatever aiding force they may furnish the construction of statutes of doubtful meaning, can have none at all where the statute is clear and positive. If there be considerations which outweigh the present declared ‘ ‘ policy of the statute, ’ ’ in favor of a change to a different one, these are to be addressed to the legislature. We have given the very able and learned argument of counsel for appellant on this branch of the case full consideration, and cannot concur in their view, under our statutes and decisions.

It was proper to permit the plaintiff to explain whether he meant, by taking the note, to waive his lien, under the circumstances of this case. As was said by Gibson, C. J., in Reynolds v. Richards, 14 Pa. St., 208: “It follows not that because the evidence was written its effect was to be determined by the court. To interpret the meaning of a writing unaffected by parol testimony is doubtless the province of the j udge, ’ ’ but its effect as evidence of a collateral fact — as waiver, in this case — is for the jury.

The fourth and fifth assignments of error are therefore not well taken. Nor do we think the sixth or seventh assignment well taken. The question of waiver was one of fact for the jury. All testimony illustrative of this intent to waive should be received. And, for this reason, the court should have permitted the testimony that cotton had been shipped to New Orleans with the consent of plaintiff, if such testimony could be made. Waiver is the intentional relinquishment of a known right. 28 Am. & Eng. Enc. L., 526. See, especially, Montague's Admr. v. Massey, 76 Va., 307, and Boynton v. Braley, 54 Vt., 92. Counsel for both appellant and appellee misconceive Warren v. Jones, 70 Miss., 202. It is not the law that the burden of proof is on the plaintiff to show that the cotton was sold or delivered without his consent. The instruction in that case, announcing that proposition, was given below to the party who won, and who could not assign error of it, and what was said in the opinion had no reference to that charge.

Instruction No. 2, given for plaintiff, is at least misleading. If it was meant to announce the rule that, where a promise is accepted in satisfaction and discharge of a former promise, the latter promise must be accepted expressly in discharge of such first promise — in other words, that, under the modification of the ancient rule that a good accord and satisfaction was only made out where there was performance shown, by which modification the latter promise may be sufficient without performance, when, and only when, the latter promise is expressly accepted in satisfaction of the former, it is as to this sound. See Whitney v. Cook, 53 Miss., 559, and Pullium v. Taylor, 50 Miss., 551. But, under the wording of the instruction, the jury may have understood that the lien could only be waived in any case by a direct and express agreement. This would be error. Under the peculiar facts of this case, it is impossible to say that this instruction did not mislead the jury. We find no other error. For the error indicated, the judgment is

Reversed^ and cause remanded.