| Ark. | Feb 25, 1918
(after stating the facts). The cause was heard upon testimony taken ore terms before the court and taken down by a stenographer and afterwards reduced to writing, the statements made a part of the record and treated as depositions taken in the regular way. A motion for a new trial and bill of exceptions were therefore not necessary to present to this court the issues of fact that were passed upon by the trial court. LeMay v. Johnson, 35 Ark. 225" date_filed="1879-11-15" court="Ark." case_name="Lemay v. Johnson">35 Ark. 225; Western Coal & Mining Co. v. Hollenbeck, 72 Ark. 44" date_filed="1903-12-12" court="Ark." case_name="Western Coal & Mining Co. v. Hollenbeck">72 Ark. 44. See also Acts 1915, page 1081.
Chancery causes in this court are heard de novo.
' Passing over the question as to whether or not C. L. Bradley had authority to enter into the contract with Rambo under which appellees claim, and conceding that he had such authority, nevertheless the court erred in holding that Rambo and his assignees had complied with the terms of the contract.
The undisputed evidence shows that at the time the contract was entered into Rambo represented to Bradley that he was financially able to perform the contract. Without setting out and discussing the evidence in detail, we are convinced that the decided preponderance of it shows that Rambo was not financially able to perform the contract, and did not operate the mine continuously as contemplated by the contract. Furthermore, even if Rambo and his assignees had performed the contract up to the time when the big flood came that washed away the buildings and most of the machinery, thus making it impossible to operate the mill plant until same was restored, there was no effort on the part of Rambo or his assignees to rehabilitate the plant. The undisputed facts as shown by the letters of Rambo to Bradley and as shown by the testimony of Holliman are that at the time the lease was canceled they had made no efforts towards the rebuilding of the plant. Holliman testified on this point, ‘ ‘ after the mill washed away it lay idle until I went to work October 12. ’ ’ He was asked if he had any money with which to begin operations when he purchased an interest, and answered: “But very little. I had a little; I don’t think over $50 or $75. I have an idea that a mill like that would cost about $7,500 or $8,000. I had a chance to make the ore build it back or get money and build it back if necessary. Mr. Muslow informed me by letter that he would assist me in getting the mill back if I could not work my way through on the free ore proposition. I insisted on trying that first. I had not made arrangements further than this; was relying on what he told me; I suppose that this was the only arrangements made about it.”
After Rambo wrote Bradley stating that he could not raise the funds to rebuild the mill and that he wished to sell the lease, Bradley gave notice to Rambo to quit and that the lease contract was canceled. Holliman knew that such notice had been given to Rambo at the time that he purchased the interest in the lease from Rambo.
The clear preponderance of the evidence shows that neither Rambo nor Holliman had the means to rebuild the mill plant after the same had been washed away by the great flood of August 19, nor had they made it appear that any one else had agreed to furnish them the money with which to restore the plant. The burden was upon the appellees to show that they intended to rebuild and could have restored the status quo of the property within a reasonable time after its destruction by the flood. There was an express covenant on the part of appellee Rambo, “to keep the machinery in as good working order as when he took possession, less the natural wear and tear of the same.”
“Under an express covenant to repair, the lessee’s liability is not confined to cases of ordinary and gradual decay, but extends to injuries done to the property by fire, although accidental; and even if the premises are entirely consumed, he is still bound to repair within a reasonable time. And the principle applies to all damages occasioned by a public enemy, or by a mob, flood or tempest. Thus where the covenant is ‘to repair’ in general terms, or ‘to repair, uphold and support,’ or however otherwise phrased, if it prescribes the duty of repair, it binds the lessee to rebuild if the premises are destroyed.” 1 Taylor’s Landlord & Tenant, § 364, p. 454. See cases cited in note. See Tedstrom v. Puddephatt, 99 Ark. 193" date_filed="1911-05-08" court="Ark." case_name="Tedstrom v. Puddephatt">99 Ark. 193.
There was no exception in the contract against accident by flood, therefore the appellee Rambo and his assignees are bound by the express covenant to repair.
A clear preponderance of the evidence shows that after the mill plant was swept away by the flood appellees were holding the same for speculative purposes. The most that the proof shows is that they hoped to be able to make the necessary financial arrangements to rebuild the plant. But they had not succeeded and had abandoned all efforts in this direction except trying to make the production of free ore pay the expenses of development. This the evidence shows was entirely problematical. The appellants under the circumstances had a right to treat the lease as canceled and to take possession of the property.
The decree of the court is therefore reversed and the cause is remanded with directions to- the chancery court to enter decree in accordance with this opinion.