Summary
In Federal Land Bank of New Orleans v. Southern Credit Corporation, 188 Miss. 192, 192 So. 827 (1940), a landlord sought to recover the amount of rent from a credit company which had advanced money to the tenant to produce the crop and which had received the proceeds from cotton sold by the tenant.
Summary of this case from Planters Bank Trust Co. v. SklarOpinion
No. 33924.
January 8, 1940.
1. LANDLORD AND TENANT.
A landlord's lien on agricultural products may be waived by a course of dealing between a landlord and tenant, if it shows consent by landlord to the disposition and sale of the crop.
2. LANDLORD AND TENANT.
Where landlord, having landlord's lien, permitted tenant during previous year to sell cotton crop himself without written consent required by lease, landlord, by such course of conduct, waived its lien and could not recover amount of rent from credit company, which had advanced money to tenant to produce crop, and which had received proceeds from cotton sold by tenant.
APPEAL from chancery court of Washington county; HON. J.L. WILLIAMS, Chancellor.
H.P. Farish and William C. Keady, both of Greenville, and B.C. Adams and T.H. Hedgepeth, both of New Orleans, La., for appellant.
Appellant seeks to hold appellee liable for the unpaid rent of 1936 on two grounds: (1) That appellee, participating in the negotiation and sales of the cotton, acted in disregard of the rights of appellant, a junior lien holder, although it had notice of the junior lien, and is, therefore, liable for conversion. (2) That appellee, having possession of the proceeds of the cotton sold by the tenant, Criswell, with knowledge that they were trust funds, was under a duty to distribute those funds to the landlord to satisfy the rent claim, and in failing so to do, paid to the tenant at its own peril.
Appellant contends that appellee, a senior lienholder to the extent of $1800, was without the right to assist in disposing of the crops, receiving the proceeds therefor, and paying the same to the tenant in disregard of the rights of appellant, a junior lienholder, whose lien was known to appellee.
It is an established principle that, as to a junior mortgagee of which he has notice, the senior mortgagee cannot act with regard to the mortgaged property so as to impair the rights of the junior mortgagee; and if such acts are committed, the first mortgagee is liable for the excess over and above his own claim.
43 A.L.R. 393; 10 Am. Jur. 835; 11 C.J. 591, 592; 3 Pomeroy's Equity Jurisprudence (4 Ed.), p. 2916.
It cannot be disputed that this court has repeatedly held that in the absence of a waiver of the lien, those who purchase the crops on which there is a landlord's lien, or those into whose hands the proceeds of the crop sales are delivered, take the crops or the proceeds thereof subject to the rights of the landlord as superior lienholder. Here it is conceded that the lien of appellant was junior to the lien of appellee until the satisfaction of the latter's account with the tenant. To this extent, and to this extent only, the landlord's lien was subordinated. After the payment of appellee's account for advances, the landlord's lien again became first and paramount as to all the world.
Appellant submits, in the alternative, that appellee, having come into possession of the proceeds of the Criswell cotton, took them as trust funds and was under a duty to act as trustee with regard to the interest of both landlord and tenant. In paying all of the proceeds over to the tenant, appellee violated the duty imposed by law in favor of appellant. We contend that the relationship between appellant and appellee, as mortgagees, and the circumstances under which appellee received the sales proceeds implied a trust upon the funds so received in favor of appellant.
26 R.C.L. 1200; McKee v. Lamon, 159 U.S. 315, 40 L.Ed. 165; Bolivar County v. Bank of Cleveland, 170 Miss. 555.
The court has often held that the sale of mortgaged property transfers the lien to the proceeds, and anyone taking said funds with notice of that lien is bound to satisfy the lienholder.
Bolivar County v. Bank of Cleveland, 170 Miss. 555; Watson v. Carolina Portland Cement Co., 93 Miss. 553, 46 So. 707; Bank of Hickory v. McPherson, 102 Miss. 852, 59 So. 934; Newman v. Tillman, 71 Miss. 26, 12 So. 934; Eyrich v. Bank, 67 Miss. 60, 6 So. 615; Armour v. Bank, 69 Miss. 700; Sillers v. Lester, 48 Miss. 513.
Appellee's defense in this case will be built largely upon the contention that appellant, by its course of dealing with its tenants, waived or lost its landlord's lien and that appellant thereby appointed Criswell as its agent to sell the cotton and to receive the proceeds thereof. As to what constitutes a loss of the landlord's lien, Judge McGowen has declared in a recent case as follows: "In order to constitute a waiver of a landlord's lien, the evidence must preponderate that the landlord either affirmatively agreed, or, by his conduct and course of dealing, permitted a tenant to deal with the agricultural products as though they had been freed from his lien."
Tenn. Joint Stock Land Bank v. Bank of Greenwood et al. (Miss.), 172 So. 323.
The evidence of the case at bar fails to show anywhere an affirmative agreement or an actual consent on the part of appellant to allow Criswell to sell the cotton freed of the lien.
It will doubtless be contended that because J.H. Calhoun, the field representative of appellant, knew that Criswell was selling his cotton, such notice is chargeable to appellant, and that appellant, having this knowledge, could not idly stand by without making protest and then be heard to say that Criswell lacked the authority to sell the cotton and to receive the proceeds from appellee. This argument is, according to the undisputed facts of the record, wholly without merit for the reason that Calhoun lacked authority to bind the bank in any way whatsoever regarding a waiver of appellant's lien as landlord.
2 C.J. 863.
This court has repeatedly held that where one deals with an agent he must know his powers and is bound, at his peril, to inquire and ascertain the extent of the agent's authority.
Busby v. Y. M.V.R.R. Co., 90 Miss. 13, 43 So. 1; Philip Gruner Lbr. Co. v. Algonquin Lbr. Co., 123 Miss. 157, 85 So. 191; Royal Feed Milling Co. v. Thorn, 142 Miss. 92, 107 So. 282; Wellford et al. v. Arnold, 162 Miss. 786, 147 So. 220.
Even if this court might say that the evidence does show that appellant knowingly permitted some of the cotton to be sold by its tenants, it fails to show, as it must, that appellant knowingly permitted the tenant Criswell, or any of its tenants, to sell all of the cotton grown by them in breach of the contract.
Schmitt v. Fed. Compress Warehouse Co. (Miss.), 153 So. 815.
We think that the case of Marine Bank Trust Co. v. Greenville Savings Bank Trust Co., 133 Miss. 91, 97 So. 526, shows that no matter what tenants might do with the cotton, the landlord cannot be estopped, nor his lien affected, unless he knows what is being done with the cotton and fails to take proper steps in restricting the actions of his tenants.
A waiver may be express, or may be inferred from actions or conduct; but all the attendant facts, taken together, must amount to an intentional relinquishment of a known right, in order that a waiver may exist.
27 R.C.L. 908; 13 C.J. 671.
Appellant admits that where the contract or lease is silent in regard to a custom, the proof of custom may, upon proper showing, be read into the contract or lease.
4 Jones, Commentaries on Evidence (2 Ed. 1926), p. 2886; Planters' Compress Warehouse Co. v. Ireys (Miss.), 16 So. 386; Fireman's Fund Ins. Co. v. Williams, 170 Miss. 199, 47 So. 380.
But by equal authority, it is also a well-settled principle of law that where the contract or lease, by express terms, provides against a right claimed by custom, then the custom cannot be shown.
4 Jones, Commentaries on Evidence, p. 2886; 10 R.C.L. 1077.
When the terms of a contract are clear, unambiguous and valid, they must prevail, and no evidence of custom can be permitted to change them.
Postal Telegraph-Cable Co. v. Willis, 93 Miss. 540, 47 So. 380; Bank of Forest v. Capital Nat. Bank, 173 Miss. 99, 160 So. 578; Burbridge v. Gumbel, 72 Miss. 371, 16 So. 792; Weil Bros. v. Yazoo Yarn Mills, 36 F.2d 942; D.S. Pate Lbr. Co. v. Weathers, 167 Miss. 228, 146 So. 433.
That the appellee knew of the lease there can be no doubt, in view of the fact that the rent waiver was obtained at the express wish of the appellee, and having knowledge of the lease, the appellee was chargeable with knowledge of the express provision of the lease that Criswell could not sell the cotton grown on the premises without the written consent of the appellant.
46 C.J. 551.
Appellant submits that appellee is liable for the 1936 rent lien either on the ground of conversion or on the ground of breach of trust, as the evidence of this case does not show a loss, expressly or impliedly, of the landlord's lien held by appellant. Wynn, Hafter Lake and Chas. S. Tindall, Jr., all of Greenville, for appellee.
Appellee cannot be held liable for Criswell's unpaid rent for 1936 either upon the theory of conversion or upon the theory of trust set out in appellant's brief.
The evidence shows that appellant expressly represented to appellee that Criswell had authority to sell his cotton and receive the proceeds, this representation constituting an express waiver as between appellant and appellee of any objection to the tenant's selling his own cotton.
The evidence further shows that, even in the absence of such express waiver in appellee's favor, appellant by its conduct waived its right to object to its tenant's selling and receiving the proceeds for his cotton, and such waiver inures to appellee's benefit.
In the first place, the appellant by the rental waiver that it executed in favor of appellee not only subordinated its lien to appellee's but gave express notice to the appellee that its tenant, Criswell, should be entrusted with the crops and the proceeds; and in effect the appellant constituted the tenant as agent and trustee to look after its interest in the crop.
And this express representation of the tenant's authority is made even stronger by the subordination and non-disturbance agreement executed by appellant in appellee's favor. If the waiver means anything at all it meant that the tenant should have authority to dispose of his cotton in order to satisfy the first lien of appellee.
We submit that inasmuch as the appellant clearly indicated by the express provision of the waiver that the tenant should have authority to sell the crop, receive the proceeds and pay appellee, subject only to the proviso that the appellant at all times could demand an accounting of the proceeds of the sale, and the amount of appellee's furnish to the tenant, the appellee had the right, and in fact was under a positive duty to turn over to the tenant the proceeds of the tenant's 1936 crop in excess of appellee's lien.
Should the court not consider the terms of the waiver and the subordination and non-disturbance agreement as sufficient to give the appellee the right to consider the tenant as having authority to sell his crop and receive the excess proceeds as agent or trustee for the appellant up to the amount of appellant's rent, certainly the conduct of the appellant is sufficient to show such waiver on the part of appellant.
Appellant cites authorities to the effect that one dealing with an agent must at his own peril discover the agent's power and authority. Without arguing the point, we submit this statement of law has no application to the facts in this case. The proposition is simply one of whether the agent, Calhoun, received knowledge while acting within the scope of his authority that imposed a duty upon him to communicate his information to his principal. We submit that he was under such a duty and that he received such information in the instant case.
2 C.J. 859-864.
Under the general law of agency knowledge acquired by an agent when transacting his principal's business will be imputed to him in the absence of a limitation of the agent's authority to the contrary known to the person with whom the agent deals.
Home Ins. Co. of N.Y. v. Thornhill, 165 Miss. 787, 144 So. 861, 863.
Aside from its field representative's knowledge, the proof shows indisputably that appellant had notice that its tenant, Criswell, was selling his cotton.
Appellee feels that it has factually established a waiver by the appellant of its landlord's lien on the cotton itself through its conduct toward Criswell for whose unpaid 1936 rent appellant seeks to recover from appellee. Appellee goes further and now points out to the court that appellant waived its lien as to the cotton and waived all objections to the tenant's receiving proceeds from the sale of his cotton by reason of appellant's course of dealing over a period of years with all its tenants in the same area. The proof establishes that cotton buyers and credit agencies generally had dealt with tenants of the appellant directly, turning over the excess proceeds after the payment of the credit agency's account, to the tenant and with no objection from the appellant.
A consideration of the testimony of J.R. Hodge, cotton buyer, brings home the conviction that appellant over a period of years had allowed its tenants in this particular area to sell and receive the proceeds from their cotton.
Williams v. Delta Grocery Cotton Co., 159 Miss. 575, 132 So. 732; McGee v. Carver, 141 Miss. 463, 106 So. 760; Tonnar v. Washington and Issaquena Bank, 140 Miss. 875, 105 So. 750; Schmitt v. Fed. Compress Warehouse Co., 169 Miss. 589, 153 So. 815.
The lien is a statutory one and may be waived by express permission or by consent.
Williams v. Delta Grocery Cotton Co., 159 Miss. 575, 132 So. 732; Jackson v. Jefferson, 171 Miss. 774, 158 So. 486; Bolivar County v. Bank of Cleveland, 170 Miss. 555, 155 So. 176; Jones v. Stevens, 12 So. 446; Crutcher v. Commercial Bank, 146 Miss. 404, 111 So. 569.
Appellant's conduct in 1935 directly led appellee in 1936 to pay over to the tenant excess proceeds which appellant held as stakeholder. We submit that the appellant is estopped to assert its claim against the appellee for Criswell's 1936 rent.
Judd v. Delta Grocery Cotton Co., 133 Miss. 866, 98 So. 243.
The lower court reserved its ruling on appellant's objection to the evidence offered by appellee tending to show waiver through appellant's conduct, and no ruling was later requested by appellant. Any objection now made to the admissibility of the evidence comes too late and the appellant is deemed to have waived it.
3 C.J. 891; Miss. Cent. Ry. Co. v. Hardy, 88 Miss. 732, 41 So. 505; In re Heard's Guardianship, 174 Miss. 37, 163 So. 685.
The rule is well established that any contract, written or oral, may be changed or varied, or any of its provisions waived at a later date, either by express conduct or by action or conduct.
2 Jones on Evidence, 442; Red Snapper Sauce Co. v. Bolling, 95 Miss. 752, 50 So. 401; Lusk, Harbison Jones v. Universal Credit Co., 164 Miss. 693, 145 So. 623.
The same rule applies to proof of conduct following the making of the lease in this case or to proof of a continuation of customary action on the part of appellant. The rule forbidding the introduction of extrinsic evidence to vary a written contract does not apply to this case in any event.
Regardless of the terms of the lease as between the appellant and the tenant, the proof shows beyond dispute that there was a waiver by appellant of its landlord's lien secured to it by statute. Whether the appellant by the terms of the lease reserved to itself the right to require written permission as a prerequisite to the tenant's selling the cotton does not alter the fact that the statutory lien may be waived by conduct. It is inconceivable that the evidence offered to show such waiver by reason of appellant's action should be considered inadmissible.
Should the court decide that the appellee has not established a waiver of the landlord's lien and of appellant's right to object to the tenant's selling his cotton and receiving the proceeds therefor, nevertheless, the appellee did not participate in the negotiations and sale of Criswell's cotton, did not act in disregard of appellant's rights as a junior lienholder, and is not liable for conversion.
11 C.J. 551, 592, 674; Coon v. Patterson, 110 Miss. 703, 70 So. 885, 71 So. 824; Munn v. Potter, 111 Miss. 180, 71 So. 315; Parker v. Gillis, 108 Miss. 490, 66 So. 978; Buck v. Payne, 52 Miss. 271; Elson v. Barrier, 56 Miss. 394; Copperman v. Littlejohn, 98 Miss. 636, 54 So. 77, 35 L.R.A. (N.S.) 707; Scarborough v. Lucas, 119 Miss. 128, 80 So. 521; Englebury v. Tonkel, 140 Miss. 513, 106 So. 447; Crutcher v. Commercial Bank, 146 Miss. 404, 111 So. 569.
Should the court decide that the appellee has not established a waiver of the landlord's lien and of appellant's right to object to the tenant's selling his cotton and receiving the proceeds therefor, nevertheless, the appellee was under no duty to distribute the proceeds of the sale of the tenant's cotton to the appellant landlord, and even though the proceeds be considered trust funds, such trust was imposed upon them in the hands of the tenant, and appellee taking no beneficial interest in the excess proceeds is not liable for the tenant's rent where he failed to pay it out of funds which in the tenant's hands were held in trust for the landlord.
Bolivar County v. Bank of Cleveland, 170 Miss. 555, 155 So. 176; Jackson v. Jefferson, 171 Miss. 774, 158 So. 486.
The Mississippi Supreme Court has yet to say that one who merely holds without appropriation to his own use or benefit funds derived from the sale of mortgaged property with notice of a lien thereon is bound in every instance to satisfy the lienholder. In every case where the court has declared that the person taking trust funds with notice of the trust is responsible to the lienholder it is a cardinal fact that the person taking the fund has applied it to his own debt or claim against the lienor, or has paid the money out knowing that it would be used in violation of the trust.
Bolivar County v. Bank of Cleveland, 170 Miss. 555, 155 So. 176; Jackson v. Jefferson, 171 Miss. 774, 158 So. 486; Watson v. Carolina Portland Cement Co., 93 Miss. 553, 46 So. 707; Bank of Hickory v. McPherson, 102 Miss. 852, 59 So. 934; Newman v. Tillman, 71 Miss. 26, 12 So. 934; Eyrich v. Bank, 67 Miss. 60, 6 So. 615; Armour v. Bank, 69 Miss. 700, 11 So. 28; Sillers v. Laster, 48 Miss. 513; Carpenter v. Evans, 115 Miss. 572, 76 So. 550; 3 Bogert, Trust and Trustees, 1459; Moore v. Crump, 84 Miss. 612, 37 So. 109.
We submit that upon the proof in this case under no conceivable theory can the appellee be held liable for Criswell's unpaid 1936 rent by reason of the violation of a constructive trust in favor of appellant.
Argued orally by William C. Keady and B.C. Adams, for appellant, and J.A. Lake, Jr., and Chas. S. Tindall, Jr., for appellees.
The Federal Land Bank of New Orleans entered into a contract with one J.H. Criswell for the rent or lease of 525 acres of land, known as the Muscadine Plantation, located in Washington County, Mississippi. The rent for the said lands was $1,100, with eight per cent interest from maturity until paid, and was due to be paid on the first day of November, 1936. The lease contained various stipulations, among which was paragraph seven, reading as follows: "To sell in conjunction with and only by written permission of the Bank promptly the crops grown on the leased premises and not withhold any of same, and the failure so to do or the secretion or sale of said crops for the purpose of evading the enforcement of the lien of the Bank for said rental shall automatically make all rents due and payable immediately and subject said crops to the enforcement of the landlord's lien." The lease also contained this stipulation: "The Bank agrees that it will upon request waive its landlord's lien on the 1936 crops grown on the lands rented hereunder for the actual furnish account necessary to produce said crops provided the amount does not exceed $5.00 per acre for the cotton acreage and $4.00 per acre for the corn acreage and not to exceed a total amount of $1800.00, provided, however, such request is made prior to the 1st day of May, 1936."
In pursuance of this lease contract, the Federal Land Bank of New Orleans waived a lien to the extent of $1,800 in favor of the appellee, Southern Credit Corporation, and executed with the waiver is an agreement to subordinate a lien of the Federal Land Bank to the amount of the furnish by the Southern Credit Corporation, and agreed not to interfere with the borrower in his possession of any property subject to the lien of the Southern Credit Corporation until said crops are harvested or until December 1st of the year in which they mature, whichever is the earlier. The crops were grown by Criswell and cotton was placed in the Delta Compress, and the receipts were issued to Criswell, who turned them over to the Southern Credit Corporation thereafter. Criswell sold cotton to J.R. Hodges Cotton Company, of Greenville, Mississippi from time to time during 1936, and J.R. Hodges Cotton Company issued the checks to the Southern Credit Corporation for the amount of the purchase of the cotton, noting on the check "for account of J.H. Criswell."
The first sale of the cotton was dated September 24, and this paid the account of the Southern Credit Corporation, and the Southern Credit Corporation issued its check to Criswell for $1,164.97. Thereafter, on the 6th day of November, another check was issued to Criswell for the sale of another lot of the cotton in the sum of $2,100.89, and on the 4th day of December $3,207.21 was issued to Criswell. The case was tried largely upon an agreed statement of facts with certain supplemental testimony. The J.R. Hodges Cotton Company knew that the Southern Credit Corporation had the lien on the cotton and issued its checks to the Southern Credit Corporation marked as above indicated, but it did not know whether Criswell was a tenant or an owner of the land which produced the cotton. In other words, the Hodges Cotton Company did not know anything about the lease or the lien of the Federal Land Bank. There was no express agreement or contract on the part of the Southern Credit Corporation to pay the rental owed by J.H. Criswell to the Federal Land Bank, and the Southern Credit Corporation did not notify the Federal Land Bank of the date of payment to it by J.H. Criswell of his account. It was also agreed that J.H. Criswell had not paid the $1,100 rent set out in the contract to the Federal Land Bank. It was further agreed that in 1935 J.H. Criswell had rented the same property from the Federal Land Bank and that in the fall of that year as in the fall of 1936, he ginned, stored, and received the receipts from the warehouse for his cotton, just as he did in 1936. The receipts during the year 1935 were made out in his name and delivered just as in 1936, and in the year 1935 they said Criswell sold and handled his cotton himself just as in 1936, and Criswell, during the year 1936, did not farm any land other than that leased from the Federal Land Bank.
The Federal Land Bank brought its suit against the Southern Credit Corporation for a conversion of the proceeds of the cotton above the amount which the bank had waived in favor of the Southern Credit Corporation, and proceeded on the idea first of conversion, and second upon the idea that if the conversion were not applicable to the facts of the case that it created a trust, and that the Southern Credit Corporation owed the duty to the bank to notify it when it had collected its debt from J.H. Criswell, and that it owed it the duty to hold the money for the benefit of the Federal Land Bank, or to turn the money over to the Federal Land Bank, and that it breached its trust when it turned the money over to Criswell instead of the bank. Criswell was introduced as a witness and testified that he sold his cotton in 1935 and in 1936, and that he paid all the rent of the year 1936 except $200, and that he paid the same by his delivering the same to J.S. Calhoun, who was field manager at Greenville, that is, the one that Criswell did business with. Criswell testified that he ginned the cotton, sent it to the compress, and mailed the receipts to the Southern Credit Corporation, where he got financed, and the Southern Credit Corporation did not have anything to do with the sale of the cotton, and that the Federal Land Bank gave him authority to sell the cotton. The lease contract on the authority of Criswell to sell was set out above in paragraph seven quoted herein.
There was also testimony introduced that the Federal Land Bank had leased other lands contiguous to Greenville to other parties and intrusted all of its tenants or lessees with the sale of the cotton and the handling of the proceeds, this being testified to by two credit corporations who had customers who had leased or rented land from the Federal Land Bank. This testimony as to the custom and practice of the Federal Land Bank with other tenants or lessees was objected to, and is assigned for error, the court below having dismissed the bill of the Federal Land Bank. The customers other than Criswell, or some of them, extended over a period of years, and, as stated, Criswell was permitted to sell the crop in 1935 in the manner indicated above, but he did not make an excess of the cost of production it appears.
There are many interesting questions presented that will appear from the statement, but we deem it necessary only to deal with the custom and manner in which the matter was handled, in order to dispose of the rights of the parties. It has been repeatedly held that this lien or a landlord's lien on agricultural products to which the same principles apply may be waived by a course of dealing between the employer and the employee, or landlord and tenant, which shows consent to the disposition and sale of the crop by the employer or landlord. Williams v. Delta Grocery Cotton Co., 159 Miss. 575, 132 So. 732; Seavey Sons v. Godbold, 99 Miss. 113, 54 So. 838; Phillips v. Thomas, 128 Miss. 729, 91 So. 420; Judd v. Delta Grocery Cotton Co., 133 Miss. 866, 98 So. 243; Tonnar v. Washington Issaquena Bank, 140 Miss. 875, 105 So. 750; McGee et al. v. Carver, 141 Miss. 463, 106 So. 760; Crutcher v. Commercial Bank, 146 Miss. 404, 111 So. 569; Quiver Gin Co. v. Looney et al., 144 Miss. 709, 111 So. 107.
In Judd v. Delta Grocery Cotton Company, supra, it was held that where the testimony showed that the tenant rented the plantation from the landlord for an annual money rent, and the tenant, with the knowledge and consent of the landlord, each year sold the crops; the landlord, by this course of dealing, constituted the tenant his agent for the sale of these crops, and he could not assert his landlord's lien against an innocent purchaser who bought the crops from the tenant, and accounted to the tenant for the proceeds thereof.
In the Quiver Gin Co. v. Looney case, supra, it was held that no express consent to waive the lien may be shown, but it may be shown by the course of dealing between the parties, that is, the landlord and tenant, and necessary inferences from the course of dealing between the parties may show that the lien was waived.
Under these authorities and under the facts of this case, the Federal Land Bank, by intrusting Criswell to sell the cotton, in fact accepted the risk incident to that permission. It is true the lease contract stipulated that Criswell should sell with the consent of the Federal Land Bank in writing, but that does not prevent the waiver by course of conduct indicated above from constituting a waiver of its lien, and the chancellor was correct, or at least was authorized to find, from the facts that the Federal Land Bank acquiesced in the practice that Criswell had in the matter, and that it could not, under such facts, recover the rent from the Southern Credit Corporation.
It is unnecessary to pass on the other questions involved in the case, and the judgment will be affirmed.
Affirmed.