108 Ark. 357 | Ark. | 1913
(after stating the facts). In their brief counsel say that this appeal is prosecuted solely upon the theory that the court erred in admitting evidence to the effect that Cleveland told Bass when he purchased the land that he could not move on it and have any benefit from it until the lease had expired, and that Bass agreed to this. The deed in question contained a general covenant of warranty and the lease in question was a breach of that covenant. Crawford v. McDonald, 84 Ark. 415.
In the case of Barnett v. Hughey, 54 Ark. 195, in discussing the measure of damages in an action for breach of the covenant of warranty, the court said:
“In such actions, parol evidence is admissible, on the part of the plaintiff, to show that the actual consideration was greater than that expressed in the deed, for the purpose of increasing the damages, and, on the part of the defendant, to show that'it was less, for the purpose of diminishing them; but not for the purpose of defeating the deed or a recovery on the covenants.” Citing authorities.
Again, in the case of Davis v. Jernigan, 71 Ark. 494, the court said that “in actions for breach of covenants in the deed it is admissible, on the part of the plaintiff, to show that the actual consideration was greater than that expressed in the deed, for the purpose of increasing the damages, and on the part of the defendant to show that it was less, for the purpose of diminishing them; but not for the purpose of defeating the deed or a recovery on the. covenants. Citing authorities.
In the case of J. H. Magill Lumber Co. v. Lane-White Lumber Co., 90 Ark. 426, the court held:
“Though the recitals in a bill of sale can not be contradicted by parol evidence for the purpose of defeating such instrument, it is competent to prove by such evidence that the consideration has not been paid as recited, or to establish the fact that other considerations not recited in the deed were agreed to be paid, when such proof does not contradict the terms of the writing.”
The vendor told the vendee that there was an unexpired lease on the land, and that there was no rent to be paid on it, and the vendee agreed to it. This fact then became a part of the consideration in fixing - the price for which the land was tq be sold.
Therefore, it will be seen that the testimony objected to was admissible on the question of the reduction of damages, and the court did not err in admitting it. Neither did the court err in refusing to give instruction numbered one, asked by the plaintiff, which is as follows:
“You are instructed to find for the plaintiff and against Cleveland for the amount of three years rent on the land in controversy, together with interest thereon at 6 per cent from the time rent is ordinarily due to this date. ’ ’
It is true that “where the incumbrance is an unexpired term or lease, the general rule, at least in the absence of any special circumstance, is that the measure of damages will be the fair rental value of the land to the expiration of the term. The underlying principle is that the damages should be estimated according to the real injury arising from the existence of the incumbrance, which, in the case supposed, is presumably and ordinarily the value of the use of the premises for the time during which the vendee has been deprived of such use.” Fritz v. Pusey (Minn.), 18 N. W. 94; Rawle on Covenants for Title (5 éd.), sec. 191. See also case note 35, L. R. A. (N. S.), 799.
The vice of the instruction, however, is that it ignored the testimony of the defendant on the reduction of damages. Starnes had agreed to clear and put in cultivation as much of the land as he desired, and in consideration therefor was to have the land to the end of his term free from rent. Cleveland, testified that he told Bass of the outstanding lease and that he could not have any benefit from the land until the expiration of the lease and Bass agreed to this. This evidence, as we have already seen, was competent to reduce the damages. It tended to show that the incumbrance had inflicted no actual injury upon the plaintiff and he was therefore, under the defendant’s evidence, only entitled to nominal damages. The rule is that nominal damages only are to be recovered for a merely technical breach of covenant against incumbrances. Rawle on Covenants for Title, (5 ed.), sec. 188. See also Chase v. Barnes, (Kan.), 107 Pac. 769.
No objections have been urged by counsel in their brief to the instructions given by the court, and under our rules of practice any objections to them will be deemed to have been waived. Counsel in their brief specifically base their right to a reversal of the judgment upon the grounds which we have discussed.
Where a plaintiff is entitled to nominal damages only, the judgment will he reversed hut the cause will not be remanded. In such cases judgment will be entered here for nominal damages and the costs. Dilley v. Thomas, 106 Ark. 274.
It follows that the judgment will be reversed and judgment will be entered here for the plaintiff for nominal damages and the cost of the appeal.
