
    10730
    MATTISON v. GLENN
    (109 S. E. 105)
    Landlord and Tenant—Owner Must Account to Share Cropper por Market Value When Settlement Demanded, With Interest From Such Date.—In a share cropper’s action against owner for an accounting, the Court erred in charging defendant on the basis of the value of plaintiff’s share of the crop, if sold at the highest price at which it could be sold at any time after plaintiff demanded settlement; defendant being properly chargeable with no more than the market value at the time settlement was demanded, with interest on the balance due from that date.
    Before Gary, J., Anderson, December, 1920.
    Modified.
    Action by Pink Mattison against W. Keith Glenn. Judgment for plaintiff and defendant appeals.
    The decree of the Court below is as follows:
    This is a suit for accounting between the plaintiff and the defendant, W. Keith Glenn. The plaintiff claim's that as a share cropper the said defendant is still due him, practically all of the plaintiff’s share of the crop raised by him. The said defendant claims that he does not owe plaintiff anything. That the said defendant has furnished the plaintiff supplies to an amount greater than the plaintiff’s share of the crop, and that the plaintiff is really indebted to the said defendant in the sum of 90-odd dollars. It was referred to a special referee to take the testimony in the case and to state the account between the parties. The special referee has taken the testimony and made his report. Both sides except to the report. Their several exceptions may be found in the record. The case is now before me upon these exceptions.
    The testimony as to many of the facts in dispute is vague, indefinite, and unsatisfactory. Frequently it amounts to no more 'than an assertion on the part of the plaintiff and a denial oh the part of the defendant. It is difficult to determine with certainty where the truth is. I think the special referee has in the main reached just conclusons, except as to the nature of the final judgment rendered by him. I agree with the referee as to the terms of the contract between the parties, and that they were share croppers. The main questions, then, are: First. What crops were made by plaintiff ? Second. What supplies were furnished plaintiff by defendant? Third. What incidental items should'be credited to each?
    To answer these questions is simply to state the accounts between the parties. This we will proceed to • do. The plaintiff should, of course, be credited with one-half of the crops raised by him, the value thereof being ascertained by calculating what it will amount to if sold at the highest price at which said crop could be sold any time after the plaintiff demanded a settlement from the said defendant. This principle of settlement between share croppers is recognized-in the recent case of Rainwater et al. v. Mer. & Farmers1 Bank of Cheraw, S. C., 114 S. C. 358, 103 S. E. 587.
    The defendant claims to have an account against the plaintiff for supplies amounting- to $2,034.74. Some of the items going to make up this account should not be allowed. The item of $140.82 for interest was properly disallowed by the referee. The item of $8 for bolster should not be allowed. The item of $8 for three wagon tongues should not be allowed. The item of $2.50 for two hoes should hot be allowed. • If the remaining items are incorrect, the-testimony is too unsatisfactory and vaghe to warrant the Court in so holding.
    The account of the said defendant against the plaintiff would therefore stand as follows:
    The account as set forth..............., . . . $2,034 74
    Less items disallowed ..................... 159 32
    Balance ............................ $1,875 42
    The plaintiff’s account against the said defendant should stand as follows:
    For cotton seed .......................... $ 41 38
    For 12 bushels of bottom corn at $2.25 per bushel 27 00
    
      For cane seed............................. 6 00
    For one-half good cotton, to wit, 5,095 pounds, at 33 cents per pound...................... 1,681 35
    For one-half off-grade cotton, to wit, 2,019 pounds, at 30 cents per pound........... 605 70
    Total ...............'............... $2,361 43 . 1,875 42
    Balance due plaintiff .................. $ 486 01
    —-for which amount plaintiff should have judgment against the defendant, W. Keith Glenn.
    It is therefore hereby ordered, adjudged, and decreed that the special referee’s report herein' be and the same is amtended in the particulars indicated, and that the plaintiff, Mattison, have leave to enter up judgment against the defendant, W. Keith Glenn, for the sum of $486.01.
    
      Mr. A. H. Dagnail, for appellant,
    cites: Defendant due to account only for market price at time of breach or demand, not for highest price that could have been obtained; 114 S. C. 358; 92 S. C. 119; 1 Bay 102; Harp. 112; 13 Cyc. 168; 101 S. E. 192 (Ga.); 61 S. W. 538. Oral agreement to pay interest on the account and advances and it should have been allowed: 92 S. C. 114; 1 Bail. 623; 1 Hill 400; 1 Riley L. 218; 8 Rich. 287; 10 Rich Eq. 53; 2 Nott & McC. E. 496; 17 S. C. 314; 47 S. C. 185; 92 S.C. 338; 22 Cyc. 1503, 1541. Damage by tenant properly deducted in settlement by landlord: 115 S. C. 374, 105 S. E. 737; 43 S. C. 63. Plaintiff can recover no more than he sued for: 47 S. C. 176; 86 S. C. 525;
    
      Messrs. Bonham & Allen, for respondent,
    cite: Not an account stated-: 104 S. C. 280. Open running account does not bear interest: 1 Civ. Code 1912, Sec. 2516; 100 S. C. 100; 98 S.- C. 313; 2 Bay 233; 30 S. C 177; 20 S. C. 555. Settlement must be at price received not less than market price: 114 S. C. 358.
    October 10, 1921.
   The opinion of the Court was delivered by

Mr. Justice Cothran.

In view of the conflicting and confused state of the testimony in this case, the Circuit Judge has arrived at the justice of it as nearly as we might hope to do, with these exceptions:

(1) The defendant should account for the good cotton at 28 cents per pound and the off-grade at 25 cents per pound; the rule in the Rainwater Case, 114 S. C. 358, 103 S. E. 587, does not justify charging him with more than the market value at the time settlement was demanded, with interest from that date, November 1, 1918; the interest to be calculated upon the balance ascertained to be due by the defendant to the plaintiff as of that date.

(2) The defendant should account for the bottom, corn, $20, that being the amount claimed in the complaint.

(3)The defendant should not be required to' account for more than $2 for cane seed furnished by the plaintiff, as he testifies that he only bought one-half bushel at $4 per bushel.

The account between the parties would then -stand thus:

Defendant’s account ........’.............. $2,034 74

Less items disallowed ...................... 159 32

$1,875 42

The plaintiff’s account:

Cotton seed....................$ 41 38

Bottom corn.................... 20 00

Cane seed ...................... 2 00

Good cotton .................... 1,426 60

Bad cotton .................... 504 75 1,994 73

Balance due plaintiff $ 119 31

—with interest from November 1, 1918, at 7 per cent, per annum.

The judgment of .this Court is that the judgment of the Circuit Court, as thus modified, be affirmed; all costs to be paid by the defendant.

Justices Watts and Fraser concur.

Mr. Chiee Justice Gary:

I dissent. The judgment of the Circuit Court should not be modified, but affirmed, for the reasons therein stated.  