
    SMALL et al. v. RUSH.
    
    (Court of Civil Appeals of Texas.
    Nov. 26, 1910.
    Rehearing Denied Dec. 17, 1910.)
    1. Landlord and Tenant (§ 331) — Petition —Items of Account.
    The petition alleging that plaintiff leased a farm to defendant 8., to be cultivated by him during a certain year, he to pay as rental a third of the crop; that on the dates following he furnished S. the following provisions, áni-mals, tools, and money, which were necessary to enable him to make a crop on said farm during said year, following which are the dates and amounts of advancements of cash, the dates and values of advancements of seed, hay, and mules, and the amounts paid out by plaintiff during the season for provisions and supplies for 'S., a certain amount at one store, and a certain amount at another, followed by an allegation that plaintiff had a landlord’s lien on the crops to secure him in the payment for the rents and supplies, and that S. had sold certain of tie crop to defendant J., without plaintiff’s knowledge and consent, is not open to the ex■ception of not itemizing the accounts sued on and not giving the different items and value thereof; the suit not being strictly on an account, but being for money and property advanced and paid out by the landlord to enable ■the tenant to make a crop on the leased premises.
    [Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. § 381.]
    2. Appeal and Eeros (§ 1051) — Harmless Ebrok — Evidence.
    Any error in admitting evidence of a matter admitted or shown by other evidence is •harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4161; Dec. Dig. § 1051.]
    •3. Payment (§ 17) — Giving of Note.
    Evidence, in a suit to recover for property and money advanced, of the value of one of the items, is not inadmissible because, some time after it was furnished, such item was closed by defendant’s note; the note not being shown to have been negotiable or to have been paid.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. § 70; Dec. Dig. § 17.]
    4. Courts (§ 121) — Amount in Controversy — Jurisdiction.
    The amount involved, as against the tenant, in a suit against a tenant to enforce a landlord’s lien for rent and supplies, as given and preserved by Rev. St. 1895. arts.. 3235-3237, being enough to give the court jurisdiction, it has jurisdiction as against one to whom the tenant had sold part of the crop, on which a distress warrant was levied, though the value of such part was insufficient to give the court jurisdiction.
    [Ed. Note. — For other eases, see Courts, Dec. Dig. § 121.]
    5. Landlord and Tenant (§ 328) — Lien for Rent and Advances — Sale and Removal of Crop.
    The landlord who leases land to be cultivated, the tenant agreeing to pay a third of the crop as rent, has a lien for rent and advances on any part of the crop sold and removed by the tenant without the landlord’s consent.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1394; Dee. Dig. § 328.]
    6. Trial (§ 139) — Instructing Verdict.
    Instructing a verdict is not error, where the evidence is such that reasonable minds could not differ as to the amount of liability.
    [Ed. Note. — For other cases, see Trial, Dec. Dig. § 139.]
    Appeal from District Court, Delta County; T. D. Montrose, Judge.
    Suit by A. J. Rush against W. B. Small and another. Judgment for plaintiff. Defendants appeal.
    Affirmed.
    E. P. Scott and J. L. Young, for appellants. Newman Phillips, for appellee.
    
      
       writ of error denied by Supreme Court.
    
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BOOKHOUT, J.

This suit was instituted by A. J. Rush as plaintiff against W. B. Small and T. A. Johnson, defendants, in the district court of Delta county, alleging in substance, that plaintiff had leased a certain farm located in Delta county, Tex., to the said W. B. Small to be by him cultivated in corn and cotton during the year 1908. The further allegations were made; That said Small was to pay as rental for said land one-third of the com and one-fourth of the cot-, ton grown thereon. That on the following days and dates he furnished said tenant Small the following provisions, animals, tools, and money, which were necessary to enable him to make a crop on said farm during the year 1908:

February 18, 1908, cash.$15 00 May 18, 1908, cash. 5 00 June 10, 1908, cash. 2 00 July 25, 1908, com. 38 33 July 10, 1908, cash. 25 00 Oats for seed. 5 50

July —, 1908, 60 bales of hay. 15 00

That during the spring and summer of 1908 provisions and supplies (the exact dates and the different amounts plaintiff cannot give) furnished at the store of Oscar Anderson in Delta county, $287; provisions and supplies furnished at the store of C. E. Anderson of Delta county, $21.80; and, in like manner, from the store of Burton-Peel in Paris, Tex., $162.50; November 28, 1907, two mules, $310.

It was alleged that A. J. Rush, plaintiff, had a landlord’s lien on all the crops to secure him in the payment for the rents and supplies, and that said W. B. Small had sold five bales of cotton grown upon plaintiff’s farm to T. A. Johnson, without the knowledge and consent of A. J. Rush. A distress warrant was issued and levied upon five bales of cotton in the possession of T. A. Johnson. Johnson replevied the cotton. Johnson answered, denying that he had purchased any cotton from W. B. Small upon which A. J. Rush had a lien, and, further, that if said Rush had ever had a lien on said cotton he, Rush, had given his permission for the sale thereof. There was a trial, and the jury under a peremptory instruction by the court found in favor of plaintiff against the defendant Small, individually, for $99.90, and in favor of plaintiff against Small for $959.79, with a foreclosure of his landlord’s lien as prayed for. The jury further found in favor of plaintiff for the five bales of cotton in the possession of Johnson in the sum of $209.95, with a foreclosure of the lien thereon against said Johnson and the sureties on his bond. Judgment followed on the verdict, and defendants appealed.

The brief of appellant Small presents three contentions, which we feel called upon to consider.

1. That the court erred in overruling his exceptions to plaintiff’s petition, which are to the effect that the petition did not itemize the accounts sued on, and did not give the different items and the value thereof. There was no error in this ruling. This is not a suit, strictly speaking, on an account, but a suit for money and property advanced and paid out by the landlord to enable the tenant to make a crop on the leased premises. The petition alleged the amount of cash advanced and the time it was advanced. It alleged the amounts paid out by the landlord to different stores for provisions and supplies for the tenant to enable him to make a crop. It further alleged the value of the mules furnished by the landlord to the tenant with which to make the crop.

2. There was no error in admitting the testimony of John Reed as to the account of the Burton-Peel Dry Goods Company. The testimony was admissible, but if it had not been, Small, in his deposition, admitted having purchased $162.50 worth of goods, the amount claimed in the petition, from said company, but he says his recollection is it was in 1907, instead of 1908. The other evidence shows beyond question it was in 1908.

3. Nor was there error in admitting evidence of the value of the mules furnished by Rush to his tenant Small. This testimony was not rendered inadmissible by reason of the fact that some time after the mules were so furnished this item was closed by the note of Small. The evidence did not show that the note was negotiable or that it had been paid. .

The appellant Johnson complains that the court erred in the overruling of his plea to the jurisdiction of the court. His plea alleged that the action as to him was separate and distinct from the action against Small, and the petition seeks to recover from him a sum less than $500, and the court was without jurisdiction as to him. This contention is not sustained. The suit was instituted by the landlord against his tenant to recover his rents and advances made to the tenant to enable him to make a crop on the rented premises. A distress warrant was sued out and levied upon five bales of cotton in the possession of appellant Johnson, which five bales were raised on the rented premises. The court had jurisdiction to determine whether the cotton in the possession of appellant was subject to a foreclosure, as sought by the appellee, and to foreclose the lien against it, even though the value of the cotton was under $500. Rev. St. 1895, arts. 3235, 3236, and 3237. Templeman v. Gresham, 61 Tex. 50.

Again, it is contended by appellant Johnson that the court erred in peremptorily instructing the jury to find in favor of the plaintiff and against him and the sureties on his replevy bond for the five bales of cotton, and for the foreclosure of the landlord’s lien in favor of plaintiff and against the said five bales of cotton, for the reason that the evidence showed that plaintiff had contracted with defendant Small to divide the proceeds of the cotton raised by Small, and had instructed Small to sell the cotton. This contention is not sustained. The evidence did not show that Small, the tenant, was authorized or had ‘been instructed to sell the cotton. The cotton having been raised by the tenant on the rented premises and removed by the tenant without the consent of the landlord and conveyed to Johnson, it was liable for the landlord’s lien thereon. Zapp v. Johnson, 87 Tex. 641, 39 S. W. 861; York v. Carlisle, 19 Tex. Civ. App. 269, 46 S. W. 257; Sanger v. Magee, 29 Tex. Civ. App. 397, 69 S. W. 234.

The court did not err in instructing a verdict for plaintiff. The evidence was such that no two reasonable minds could have differed as to the amount due by the tenant to the landlord for rents and advances, or the amount which appellant Johnson was liable for on his bond.

The judgment is affirmed.  