Scott & Garrett v. Green River Lumber Co. , 116 Miss. 524 ( 1917 )

Ethridge, J.,

delivered the opinion of the court.

The Creen River Lumber Company filed suit in the circuit court of Qiiitman county against Scott & Carrett, a mercantile firm doing business in said county, for three hundred forty-six dollars and thirty-two cents, alleged to be the amount of rent due the Creen River Lumber Company by one J. S. Norris, who rented certain lands from the lumber company, Scott & Carrett having purchased products grown upon the leased premises during the year 1914, amounting to more than said amount claimed as rent. The defendants, Scott & Carrett, contended that, in November, 19.14, Norris went to work for the Creen River Lumber Company as a laborer or superintendent of the sawmilling business, at and for the sum of one hundred dollars per month, and that between November, 1914, and the date of judgment twenty-one months had elapsed, and, Norris being a single man, that it was the duty of the Green River Lumber Company to collect from Norris as much as possible so as to reduce its claim, or to collect it in full, out of the wages earned by Norris. It appears in the record that, in addition to the rent of three hundred forty-six dollars and thirty-two cents, Norris was indebted to the lumber company on a different account for about five hundred eighty-four dollars, making a total indebtedness due by Norris to the lumber company at- the time he was hired of approximately nine hundred dollars.

At the conclusion of the evidence the court granted a peremptory instruction to find for the plaintiff, Creen River Lumber Company, and refused two instructions requested by the defendants, Scott &■ Carrett. The refused instructions are as follows:

“The court instructs the jury that, if they believe from the.evidence in this case that the plaintiff was, at any time after the rent here sued for became due to them from the tenant, Norris, indebted to the said Norris in any sum, and that they paid- him any amount that they were so due him instead of applying it to the rent due them by the said Norris, and if the jury further believe from the evidence that the purchase of the cotton raised on the leased premises by the defendants was for a good and valuable consideration, and that they did not, in consideration of such purchase, assume or promise to pay the rent due by the said Norris to the plaintiff, the plaintiff thereby released the defendants from their liability for said rent to the extent of such payment so made by them to the said Norris, and the jury should deduct from the amount of the rent sued for such sum as the evidence shows was so paid by the plaintiff to the said Norris and return their verdict only for such balance, if any, as is now due to the plaintiff on said rent after the deduction of such payments so made by them to the said Norris.”

“The court instructs the jury that, if they believe from the evidence that the plaintiff was at any time indebted to the tenant, Norris, in a sum equal to or exceeding the amount due to them by the said Norris for rent, and that the plaintiff paid the said sum to the said Nor-’ ris instead of retaining it in satisfaction of the rent due them by the said Norris, the defendants were thereby released from their liability on account of the purchase of the cotton raised on the leased premises, if said purchase was in good faith' and for a valuable consideration, and if the defendants, in consideration of the purchase, did not assume and agree to pay the said rents, and if the jury so believe, they should find for the defendants.”

The question arises for decision as to whether a landlord having a claim for rent against the tenant, and having a right under the statute to resort to the products grown upon the leased premises for satisfaction thereof, and also having an action against any person buying said products, with or without notice of the landlord’s lien, and who has become indebted to the tenant for wages due, or in some other manner, is bound to withhold the amount due to the tenant and apply it on the indebted; ness due by the tenant before resorting to a third person, who has bought products grown upon the land and paid value therefor, for the amount due.

In the case of Applewhite v. Nelms, 71 Miss. 482, 14 So. 443, involving the construction of section 2495 of the Code of 1892, under which statute the landlord has a lien on all products grown on the leased premises, the question for decision was whether or not he could resort to a subtenant’s crop for satisfaction of his lien without first having exhausted the products and crops of the main tenant and his right to proceed against the buyers of such products from the tenant before resorting to the crops of a subtenant. The court held, in effect, that The relation existing between the landlord and subtenant was that the subtenant was a surety for the rent due by the principal tenant, and that the landlord should be compelled to exhaust his remedy against the tenant. It is a familiar principle of the law that, where two parties are in a situation where one or the other must suffer for the default or act of some third person, and one party has it within his power to prevent, by reasonable means, either party from suffering, and fails to do so, he will be held responsible. for the loss which he might have obviated. The right of the landlord to resort to the purchaser of products of the tenant for the amount of his rent, to the extent of the value of the products, arises as an action for the conversion of the' property. The court having reached the conclusion in the original case which held such person liable, that it was made a crime by statute to remove the products from the place or premises where they were grown without the consent of the landlord, and that liability arose from such statute; in other words, it did not arise in contract, but from the tort of the purchaser. In all cases of damage it is the duty of the party who is damaged to reduce his damages where it is reasonably within his power to do so. The rule is stated in 13 Cyc. p. 71, par. "k,’’ as follows:

'‘Where an injured party finds that a wrong has been perpetrated on him, he should use all reasonable means to arrest the loss. He cannot stand idly by and permit the loss to increase and then hold the wrongdoer liable for the loss which he might have prevented.”

We have carefully examined the authorities cited in the briefs, and have made an independent investigation of all available authorities at our command, but have failed to find a case precisely in point. We think, however, that the general principles of law warrant ns in holding that the landlord cannot pay to his tenant, who is indebted to him, sums of money in excess of the amount due by the tenant, and thereafter recover the amount due by the tenant from a .purchaser of products of the tenant in good faith. Of course, it was not incumbent upon the landlord to employ Norris, and he could not be required to apply any money which would he exempt to Norris to the liquidation of his debts, but he must use reasonable means to reduce his damage, and we think the peremptory instruction. should not have been given to the plaintiff, and that the defendant should have had the instructions requested, but refused, and that the cause should have been submitted to the jury on the proper instructions.

The judgment is reversed, and the cause remanded.

Reversed and remanded.