Furohes, J.:
¶1
This case is controlled by
Ballard
v.
Johnson,
114 N. C., 141
¶2 *157
The defendant was entitled to bis second prayer for instructions to the jury.
¶3
The court declined to give these instructions, and this entitles the defendant to a new trial. And, as this substantially disposes of the matters controverted, we do not consider the other questions presented by the appeal. There is error.
¶4
N ew Trial.
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Case posture Posture ACTION tried before Bynum, J. , at March Term, 1894, of PITT, on appeal from a justice of the peace.
It was in evidence that Fleming got from the defendant Davenport (154) nearly all his supplies to run his tenants for 1892, including the tenant Lazarus Daniel. That said Joseph Fleming gave orders on said Davenport to his tenants, and that Davenport furnished the supplies to the tenants on these orders and charged the same to said Joseph Fleming, and that they have not been paid for.
The plaintiff introduced evidence tending to show that there was a verbal agreement between the landlord and tenant that the account of 1891 should be a lien on the crop of 1892. This was disputed by the tenant.
Defendant asked for following instructions, among others: (155)
In no event can the landlord call upon Davenport to pay out of the cotton which came into his possession more than the actual advances made by Fleming to his tenant in 1892 to enable him to make his crop of that year, and the court charges you that the balance of the tenant's account for 1891 is not a lien on the tenant's interest in the cotton of 1892 superior to Davenport's lien, and you cannot charge this against him in this proceeding.
His Honor refused to charge the jury as requested, but in lieu of that gave the following instructions, to wit:
If you find the fact to be that Daniel was a tenant of Fleming for the year 1891, and again for 1892, and Daniel owed Fleming anything for the year 1891 as advancements, and there was no special contract between them in the renting for 1892 that the amount due for 1891 should be a charge or lien on the 1892 crops, then plaintiff, as assignee in this case, was not entitled to recover that amount in this case. If you find that Daniel rented for 1892, then Fleming had a lien upon all the crops raised for the rents and for any sum advanced that year, and if he thought proper to let Daniel take the corn and fodder and other crops, and to hold to the cotton for the amount due him, he (156) had a right to do that, and although the defendant had a mortgage on it, the plaintiff's lien was superior to his, and he had a right to recover it out of this cotton. If you find that Fleming and Daniel made a special contract in 1892 that the amount due for 1891 should be a lien on the crop of 1892, then that also became a lien as against any debt to another not secured by a mortgage, and as the mortgage of the defendant was not made until after the assignment, his lien is inferior to that of plaintiff, as assignee of Fleming, and the plaintiff is also entitled to recover that sum. So, if you find that there was a special contract between Fleming and Daniel in writing in 1892 that the amount due from
Daniel to Fleming for 1891 should be a lien on the 1892 crop, the answer to the issue will be the amount due from 1891 and 1892, whatever you may find that to be. If you find the special contract for the account of 1891 to be a lien on the 1892 crop was not made, the answer will be the amount advanced by Joe Fleming for the year 1892.
The issue submitted to the jury was:
Is defendant indebted to the plaintiff, and if so, in what amount?
To which the jury responded, under the instructions given by his Honor, Yes, in the sum of $64.87, with interest at 6 per cent from date of sale of cotton.
His Honor thereupon rendered the judgment for the plaintiff, and defendant appealed. Source: CourtListener
