126 Ark. 38 | Ark. | 1916
Appellee rented a store room from appellant for a term of five years, beginning January 1, 1911, to use in the operation of a wholesale and retail liquor business. The contract provided for monthly payments of rent, and also contained the following clause: “It is further understood and agreed between the parties that in case the prohibition of the sale of liquor in Jefferson County or in the city of Pine Bluff should be established and the said lessee prohibited from carrying on its business as wholesale and retail liquor dealers in said building by operation of law, then at the option of the lessee and upon written notice given by it, this lease shall terminate and be at an end. ”
Appellee moved out of the building on March 1, 1914; and paid the rent up to that date, having given verbal notice a short time before of intention to terminate the lease.
This is an action instituted by appellant to recover on the notes for monthly payments of rent accruing subsequent to the removal of appellee from the building. Appellee filed an answer, alleging in substance that on January 1, 19Í4, when the Act of February 17, 1913 (p. 180), went into effect, prohibiting the issuance of license to sell intoxicating liquors unless a majority of the adult white inhabitants within the incorporated limits of the town or city should file a petition asking therefor, that a petition in conformity with the statute was filed with the county court, but was withdrawn on February 18 without being passed on by the county court, and that a second petition was filed on February 28, 1914, and the prayer thereof was granted on April 6, 1914, and that bn or about the first of February, 1914, appellee elected to terminate the said lease and gave notice to appellant to that effect. The court sustained a demurrer to the answer, and on appeal to this court it was held that the answer stated a good defense and the judgment was reversed and the cause remanded with directions to overrule the demurrer. 117 Ark. 50.
In disposing of the case this court said: “Appellant could not have conducted the business for which it leased appellee’s building without violating the law, and each and every sale of intoxicating liquors which it might have made prior to April 6, in that year, would have constituted a violation of the law and subjected it and its employees and servants to the fines and penalties prescribed by the statute. The condition, therefore, had ■ arisen against which appellant had contracted. It having become unlawful .to sell liquor, appellant had the right to exercise the option of cancelling the lease. ”
On the remand of the cause, there was a trial before a jury which resulted in a verdict in favor of appellee. The evidence adduced on the part of appellee tended to show that during the first half of the month of February, 1914, the president of appellant corporation was verbally notified by agents of appellee that the latter had elected to terminate the lease and would remove from the building on March 1, succeeding, and that the president when so notified made no request for a written notice and said nothing about a written notice being. given. Mr. Speers, the president of the appellant corporation, testified that the latter part of February Mr. Hanf, the manager of appellee’s business, came to him and spoke about cancelling the lease but did not say that he was going to cancel it but merely said that he wanted to do so, and that he (witness) replied that he would expect appellee to comply with the contract.
We are of the opinion that the instruction just quoted embodies a correct statement of the law. The former decision of this court, which has become the law of the case, declares that at the time the verbal notice was alleged to have been given prohibition had been “established” within the meaning of the contract, and that appellee had the right to terminate the lease. The question of the time when the notice should be given was not passed on in the opinion delivered in that case. Now, taking the law as established by that decision, we think that while appellee had the right to terminate the lease under the conditions then existing, the right was not a continuing one but must have been exercised at the time the new conditions arose, or within a reasonable time thereafter. If the facts had justified it, we think appellant would have been entitled to an instruction submitting to the jury the question whether or not the notice was given within a reasonable time.
But after mature consideration we have reached the conclusion that under the undisputed testimony in the case the time was reasonable and the facts did not call for a submission of that issue to the jury. Prohibition existed in Pine Bluff, under the undisputed proof, on and after January 1, 1914, but it appears from the proof that on that day a petition of adult inhabitants of the city was presented to the county court asking for the issuance of license. That petition was not acted on finally by the county court, but was withdrawn on February 18, and ten days thereafter the new petition was filed. About that time — the precise date is not given — appellee made an election to terminate the lease, and gave verbal notice accordingly. There was a dispute whether such notice was given at all, but we must treat that issue as being settled in appellee’s favor. Under the circumstances, we think that the notice, if given at all, was a timely one, and that, as before stated, the proof did not call for a submission of that issue to the jury. Appellee had the right to wait a reasonable length of time to ascertain whether or not there was any probability of license being granted, so that it could continue its business, and it could not in any view of this evidence be said that waiting until the middle or latter part of.February, with the petition for license pending, was an unreasonable length of time to wait before making the election to cancel the lease.
There are assignments of error with respect to the rulings of the court in giving and refusing instructions on the subject of the giving of notice. The court gave the following instruction on the request of appel-, lant: “4. The parties have stipulated in their contract of lease for a written notice of the intention of lessee to terminate the lease upon the happening of the contingency named therein and a bare- acquiescence or silence on the part of plaintiff, or lessor, when informed orally by defendant of its intentions to cancel the lease and surrender the premises, even though you believe that defendant did inform plaintiff of its intention to terminate said lease, would not constitute a waiver of the written notice provided for in the lease. ” This instruction was, we think, more favorable to appellant than it was entitled to, and that there was no error in refusing to give the other instruction on the same subject.
It is contended that this instruction is erroneous and in conflict with the one given at appellant’s request. We- do not think the instructions are necessarily conflicting. But, at any rate, the instruction last quoted correctly states the law applicable to the case and there was no error in giving it. The doctrine stated in that instruction is one which has received the approval of this court in numerous cases. St. L., I. M. & S. R. Co. v. Nunley, 120-Ark. 268.
This disposes of all the attacks upon the trial court’s rulings, and no error being found the judgment must be affirmed, and it is so ordered.