Dudley v. Roberts

Adkins, J., delivered the opinion of the Court. This is a suit in trover by .appellee against appellant for the alleged wrongful appropriation to his use of the proceeds of the tenant’s part of certain tobacco' shipped jointly by William B. Olaggett, the landlord, and J. Irving Parker, the tenant, of a farm in Prince Geoi’ge’s County, Md., to appellant, a commission merchant of Baltimore City. Parker being indebted to The Matthews-Howard Motor Company, of Washington, D. 0., for purchase money fox* a motor truck, gave the company four conditional sales judgment notes amounting in all to' more than $1,100. These were all due in the summer of 1921, and were placed in .appellee’s hands for collection.

He sent for Parker and told him suit would ¹⁵⁹ bo brought unless he executed to appellee a bill of sale of his interest in this tobacco, and that the necessary papers were prepared for suit and judgment. Whereupon Parker executed a hill of sale to appellee in form following: “I, J. Irving Parker of Marlboro, Prince George’s County, in the State of Maryland, in consideration of the sum of ten ($10.00) dollars paid me by Clarence M. Roberts of the State and County aforesaid, do hereby bargain and sell to the said Clarence M. Roberts the following property: All of my one-half (%) interest in the crop of tobacco raised by me in the year 1920 on the farm of William B. Olagett, in Melwood District of Prince George’s County, Md., consisting of about twenty thousand (20,000) pounds and now stored in the barns on said farm.; also all of my one-half ( Vs) interest in the crop of wheat raised by me in the year 3921 on the farm of Robert L. Hall, in Marlboro, District of Prince George’s County, Md., consisting of about four hundred (400) bushels, and now stored in the bams on said farm; also one International motor truck, Ho. 10464, now in my possession. “Witness my band and seal this 26 th day of July, 3921. “J. Irving Parker. (Seal) “Witness: O. Ernest Coale.” “St ate of Maryland, Prince George’s County, to wit: “I hereby certify, that on this 26th day of July, in the year nineteen hundred and twenty-one, before the subscriber, a notary public of said State, in and for the couni-y aforesaid, personally appeared J. Irving Parker and acknowledged the foregoing bill of sale to be his act; and at the same time before me also appeared Clarence M. Roberts and made oath in due form of law that the consideration in said bill of sale is true and bona fide as therein set forth. “(Seal) “O. Ernest Ooale, “Hotary Public.” ¹⁶⁰ According to the testimony of appellee, this hill of sale was given to secure the claim of the motor company. According to Parker’s testimony it was understood and agreed that appellant’s claim for advances was to he first paid.

Appellee denies this, hut admits that Parker, after the hill of sale was given, spoke of owing, other money, and said he was perfectly willing to give appellee the hill of sale because be realized appellee would give him an opportunity to work it out. “I told him after taking the bill of sale and it was recorded I was satisfied Matthews & Howard would not require him to pay the full amount of the indebtedness at once. I expected to get some money out of the wheat mentioned in the hill of sale. It got away from me.” Witness subsequently admitted he did not know whether the wheat had been sold or not. He also testified that Parker still had the truck; that he never demanded from Parker that he should ship> the tobacco in the name of the Matthews-Howard Company and that witness knew Parker was going to follow out the custom with them that the tobacco would be shipped in the name of the landlord and tenant; that witness did not want to do anything to embarrass Parker with his landlord, but expected him to turn the money over t» witness when the tobacco was sold, or to notify witness be bad shipped it, or to notify witness when it was sold.

Appellant and Parker testified that at the time the hill of sale was given Parker was indebted to appellant in the sum of $605.93 for advances; that Parker stated in the presence of Dudley and Roberts that Roberts knew all about Parker’s owing money, and that Parker