Gaylor v. Monroe , 1923 Tex. App. LEXIS 1152 ( 1923 )

^* Writ of error granted March 26, 1924. This is the second time that this case has been before this court. On the former appeal it was reversed, because the trial court refused to submit a certain issue to the jury. See Gaylor v. Monroe, 221 S.W. 330. That appeal was prosecuted without a supersedeas bond, and pending the appeal the property which had been distrained was sold by order of the court, and the proceeds of the sale were paid to the clerk of the court, who used the same to pay the costs of suit, and paid to the plaintiff Monroe $1,053.70, which left in the hands of the clerk a balance of $137.23.

The litigation grew out of a lease contract. The controlling questions in the case were whether the plaintiff, Monroe, who was the landlord, was entitled to a judgment for, and had a statutory lien for, supplies furnished to his tenant, the defendant, Gaylor.

At the last trial, the case was submitted to a jury upon special issues, which, with the answers of the jury; are as follows:

"Special issue No. 1. Did Monroe alone furnish to Jim Gaylor wares and merchandise described in the account sued upon? Answer ``Yes' or ``No.'" Answer: "Yes."

"To govern you in arriving at your answer to special issue No. 1, you are instructed as follows: That if you find from the evidence that Middleton Co. let Jim Gaylor have the goods, wares, and merchandise at the request of D. Monroe and solely upon the credit of D. Monroe, then and in such event he (D. Monroe), in contemplation of the law, furnished the same to Jim Gaylor. If, on the other hand, you should find from the evidence that D. Monroe ``guaranteed' or ``stood good for' the goods, wares, and merchandise, though they may have been delivered by Middleton Co. solely and only by reason of his doing so, then such goods, wares, and merchandise were not in contemplation of the law delivered solely and only upon the credit of D. Monroe and would not under such circumstances have been furnished by D. Monroe.

"If you have answered ``No' to the foregoing special issue No. 1, then you need not answer the following, but if you have answered ``Yes,' then you will answer the following:

"Special issue No. 2. (a) Did D. Monroe furnish Jim Gaylor the goods, wares, and merchandise described in the account sued on through Middleton Co. or not? Answer ``Yes' or ``No.' (b) If so, did Gaylor then know Monroe was doing so? Answer ``Yes' or ``No.'" Answer: "(a) Yes." "(b) No."

"Special issue No. 3. Were the goods, wares, and merchandise so sold and delivered to Jim Gaylor solely and only upon the credit of D. Monroe or upon the joint credit of D. Monroe and Jim Gaylor or upon the credit of Jim Gaylor alone?" Answer: "Sold to Jim Gaylor upon the credit of D. Monroe."

"Special issue No. 4. Were the items of goods, wares, and merchandise described in the account sued on herein necessary or not necessary to enable Jim Gaylor to make a crop on land of D. Monroe in the year 1918, or to gather, secure, house, or put said crop in condition for market? Answer ``Yes' or ``No.'" Answer: "Yes."

"Our statute provides that all persons leasing or renting lands shall have a preference lien upon the property of the tenant upon such premises for any rent that may become due and for all money and the value of all animals, tools, provisions, and supplies furnished by the landlord to the tenant to enable the tenant to make a crop on said premises and to gather, secure, house, and put the same in condition for market; the money, animals, tools, provisions, and supplies so furnished being necessary for that purpose.

"Special issue No. 5. (a) Were any goods delivered by Middleton Co. to Gaylor's hired hand? Answer ``Yes' or ``No.' (b) If so, what amount and value were so furnished, if any? (c) State to whom said goods were so charged and why? (d) Was there any separate agreement or not between Middleton and Gaylor as to whom such goods should be charged? (e) If so, what was that agreement?" Answer: "(a) Yes." "(b) $246.95." "(c) To the Gaylor account by Will Adam by request of Jim Gaylor." "(d) None." "(e) There was none."

"Special issue No. 6. Was the labor of Jim Gaylor's hired hand, employed by him in cultivating and harvesting the crop upon the land rented to Gaylor by D. Monroe, necessary? Answer ``Yes' or ``No.'" Answer: "Yes."

"Special issue No. 7. Did Jim Gaylor direct Middleton Co. to let his hired hand have the goods shown in the evidence to have been gotten by the hired hand in payment of his wages due by Jim Gaylor to said hired hand? Answer ``Yes' or ``No.'" Answer: "Yes."

Upon the verdict as returned, the trial court rendered judgment in favor of the plaintiff for $424.77 as rent, and $583.94 as the amount of supplies furnished defendant by plaintiff, aggregating $1,008.71, and deducted therefrom $78.75, found by the jury to be due the defendant for work. It was also decreed that the plaintiff, Monroe, had a valid and subsisting unsatisfied landlord's lien upon all the cotton and cotton seed distrained to secure the judgment, which lien was ordered to be foreclosed; and the defendant was ordered to pay into the registry of the court $55.63 paid to him under the former judgment as proceeds of the sale of cotton, etc., in excess of the amount of recovery allowed by this judgment, and adjudged to pay all the costs, except the costs of the former appeal; and defendant has prosecuted this appeal.

Opinion. We adopt as substantially correct the following proposition of law submitted by appellant:

"Where landlord sues tenant upon open account for goods delivered to his tenant by a third party, and does not plead facts raising the issue of ratification or acquiescence, and where the jury, in answer to special issues, finds the tenant did not know when goods were gotten that the landlord was furnishing them, it is fundamental error, manifest of record, for the court to render judgment in favor of landlord against tenant for amount of the open account, and foreclose landlord's lien therefor."

The statute (Vernon's Ann.Civ.St. Supp. 1918, art. 5475) under which appellee claims his landlord's lien gives a preference lien for rents and for all money, and the value of all animals, tools, provisions and supplies furnished by the landlord to the tenant to enable the tenant to make a crop on such premises, and to gather, secure, house, and put the same in condition for market; the money, animals, tools, provisions, and supplies so furnished being necessary for that purpose, whether the same is to be paid in money, agricultural products, or other property; and this lien shall apply only to animals, tools, and other property furnished by the landlord to the tenant, and to the crop raised on said rented premises.

We think it is clear that this statute contemplates a contract or agreement between landlord and tenant, by which the former is to furnish to the latter one or more of the things referred to in the statute, and the latter becomes obligated to pay the former therefor. In other words, if a landlord chooses to do so, he may donate to his tenant any of the things referred to in the statute, and he may make such donation by directing a third person to furnish the same, and charge them to his account, and if such third person delivers such article to the tenant, who has no knowledge of the fact that the landlord and not the tenant is to pay for the same, then, and in such circumstances, there is no promise or obligation upon the part of the tenant to pay the landlord for the goods referred to; and therefore no statutory lien exists in favor of the landlord.

It is contended by counsel for appellee that the answer of the jury to special issue No. 1 shows that the plaintiff alone furnished the defendant, Gaylor, the wares and merchandise described in the account sued for, but, in construing that answer, we are of the opinion that the answer which the jury made to the second special issue, to the effect that Gaylor did not know that Monroe was furnishing the articles referred to should also be considered. The trial court instructed the jury concerning the first special issue submitted that, if the testimony showed that Middleton Co. let the defendant Gaylor have the goods, wares, and merchandise at the request of the plaintiff Monroe, and solely upon his credit, then, and in such event, in contemplation of law, he (Monroe) furnished the same to the defendant, Gaylor. That charge was fundamentally erroneous, because it authorized the jury to find that the landlord had furnished to the tenant, the articles referred to under the circumstances stated therein, without reference to any contract or agreement between the landlord and the tenant.

But it was the duty of the jury to accept that charge as the correct statement of the law, and doubtless that accounts for the answer they made to the first special issue; although, in reply to the second special issue, they found that the defendant Gaylor was not aware of the fact that the supplies referred to were furnished by his landlord Monroe. Therefore, when the jury found, in reply to subdivision "b" of the second special issue, that the tenant, when he obtained the goods, wares and merchandise referred to from Middleton Co., did not know that his landlord was furnishing the same, that finding negatived the fact that there was any agreement or understanding between the landlord and the tenant that the former was to furnish the articles referred to. In answering the first special issue as they did, the jury were doubtless misled by the erroneous charge of the court concerning what would constitute furnishing goods, wares, and merchandise by the landlord.

Hence, we conclude that, on account of the fundamental error referred to and of the answer which the jury made to the second special issue negativing the existence of one of the essential facts constituting the landlord's lien, the judgment of the trial court should be reversed, and the cause remanded, which has accordingly been done.

Reversed and remanded.