Kelton v. Taylor & Co.

goods, as coal, are usually left on a wharf, without guard, during the night, the bailee might not be responsible, although for other goods he might: Story on Bailments, secs. 14 and 15; 1 Gr. Ev., 292, 294; 5 Sneed, 681.

If, therefore, the usages of trade qualify the bailee's liability, it is competent to prove such usage. But it is argued that the court should have applied stricter care and more diligence to a ginner in the town of Trenton than to one in the country. do not see that the record discloses that there would

We

be greater danger of loss in the one case than in the other. If any difference, perhaps the quiet of the country would offer safer opportunity to thieves, and less danger of detection of the theft.

It is also insisted that the court erred in holding that the bailee was held to ordinary diligence only. This is a case in which the bailee was to do some work and bestow some care upon the thing bailed, and in such cases he is only held to ordinary diligence. But what would be ordinary diligence or care in respect to a bag of oats or a bale of cotton, might be gross negligence as to a bag of gold or a box of diamonds: 2 Parsons on C., 130; Story on B., sec. 429.

As to the instructions asked by plaintiff, the court had already instructed the jury as asked in regard to the bailee's liability, and the burden of proof on him to show good reason for not delivering the cotton. He told the jury that defendants could not relieve themselves from liability if they had dis

Latta v. Pierce.

posed of the cotton or delivered to another, by mistake or otherwise, but if it was stolen without their fault it would excuse them.

There was evidence to show that no mistake was made in its delivery to the wrong person by defendants, and from the evidence the jury concluded it was stolen, and we think the evidence justified their conclusion.

There is no error
error in the judgment, and it will

be affirmed.

S. R. LATTA v. GEORGE W. PIERCE.

RENTS. Sale of land. Upon a sale of land by the chancery court the purchaser is entitled to rent from the time when the right of possession attaches. If the decree of confirmation postpones the possession of the purchaser, he will not be entitled to rent from confirmation, but from right to possession.

FROM DYER.

Appeal in error from the Circuit Court of Dyer county. J. T. CARTHEL, J.

A. W. CAMPBELL and LATTA & MARSHALL for Latta.

C. C. Moss for Pierce.

FREEMAN, J., delivered the opinion of the court.

At a sale of the land of C. C. Moss, made under

Latta v. Pierce.

became the purchaser. court by the clerk and 23d of October, 1879.

a decree of the chancery court at Dyersburg, in August, 1879, S. R. Latta The sale was reported to the master, and confirmed on the The title was divested out of Moss and vested in the purchaser, "and it was further ordered and decreed, if necessary, that after the 25th of December, 1879, a writ of possession issue, to the end that said purchaser be put in possession of the land."

It further appears, that at the beginning of the year 1879, Moss being in possession of the land had rented thirty acres of it to defendant Pierce, who was entitled to possession as such such tenant until the 25th of December, 1879. Pierce paid Moss the rent agreed on between them for the year in November, 1879. It does not appear at what time the rent was due by the terms of the contract between Moss and Pierce.

Latta, in February, 1880, brought this suit against Pierce, claiming the right to recover the rent of the land for the year 1879, as not being due at the time of his purchase, and therefore going to him as purchaser.

The case was tried by the court without the intervention of a jury, and a judgment rendered for the defendant, from which there is an appeal in error to this court.

In a case like this, Mays v.. McMickel, at this

place, in 1871, we held that "it is only when the title is vested by confirmation that the purchaser is entitled to possession, and the claim of rent arose when the right of possession attaches."

Latta v. Pierce.

We had substantially held the same principle in the case of Armstrong v. McClure & Martin, 4 Heis., 80, and subsequently in the case of Ellis v. Foster, 6 Heis., 131, 137, saying, in the latter case, it was the better practice for the court in such case to fix in the decree the right to rents accruing after confirmation.

We hold in accord with the principle of these cases, that the purchaser was only entitled to the rents from the time his right of possession accrued under the decree fixing his title, and that, having taken a decree fixing that right after the end of the year's renting, he was not entitled to recover any rent in this case, as held by his Honor, the circuit judge. Under the cases cited, he would have been entitled probably to the rents actually arising after confirmation of the purchase, had not the decree itself postponed his right of possession. The rent well might have been apportioned in this way, it being a case of rent eo nomine, no note having been given for the same by the tenant.

The judgment of the circuit court will be affirmed.

Railroad v. Neal.

LOUISVILLE & NASHVILLE RAILROAD COMPANY v. P.

LIMITATIONS, STATUTE OF.

M. NEAL.

Actions. An action against a railroad com

pany for damages for failure to deliver cotton to commission merchant as per contract is not barred within six years.

FROM CROCKETT.

Appeal in error from the Circuit Court of Crockett county. J. T. CARTHEL, J.

H. B. FOLK for Railroad Company.

POWELL & BIGGS for Neal.

FREEMAN, J., delivered the opinion of the court.

This suit is brought to recover, to use the language of the warrant, in a plea of damages of three hundred dollars for failure to deliver one bale of cotton to Mosby, Hunt & Co. as per contract.

The facts are that the plaintiff delivered this bale of cotton with several others to the railroad agent, who gave receipt of the company, to be shipped to Mosby, Hunt & Co., of Memphis, Tenn. The cotton was not shipped, but probably stolen from the platform, no watchman or guard being kept over it while on the platform after delivery.

The only question contested is, of limitations bars plaintiff's claim.

whether the statute If the statute of