61 Ark. 312 | Ark. | 1895
Lead Opinion
(after stating the facts). A majority of the court are of the opinion that the proper construction of the contract between appellant and appellee is that appellee was bound, by its terms, to gather and deliver to appellant one-fourth of the cotton raised on the twenty acres; and that only the act of God, or the public enemy, or the act of the appellant, could excuse him from a compliance with this contract; that inconvenience or the cost of compliance, though they might make compliance a hardship, cannot excuse a party from the performance of an absolute and unqualified undertaking to do a thing that is possible and lawful. Parties sui juris bind themselves by their lawful contracts, and courts cannot alter them, because they work hardships. The parties must take care of themselves, and must be held to the performance of their undertakings, when it is possible to perform them, and they are not unlawful. “But, to make the act of God a defense, it must amount to an impossibility of performance by the promisors. Mere hardship or difficulty will not suffice.” 2 Parsons on Cont. (8 ed.) p. 672. It was not pretended that the cotton raised on the twenty acres could not be gathered; only, that it could not be gathered without much inconvenience and great and unusual expense. This would not excuse the appellee from performance of his contract to gather, which is included in his agreement to pay appellant one-fourth the cotton grown or its cash value. If he made this contract, and it proved a hard one, by the performance of which he would evidently be at great inconvenience and suffer much loss, nevertheless, if possible of performance, he was bound to perform it unless excused as indicated.
The circuit court erred in refusing the instructions asked by plaintiff, and giving the one (number five) above, for which the judgment is reversed and remanded for a new trial.
Dissenting Opinion
(dissenting.) I concur in the judgment, but do not agree to so much of the opinion as holds that nothing but the act of God or the public enemy can excuse the tenant from gathering his crop. When the tenant agrees to give a fixed sum of money or a certain quantity of cotton or other produce for rent, this rule would apply; but it is different when, as in this case, the tenant agrees to cultivate and gather the crop, and give the landlord a certain portion of the crop raised. The amount of the rent then depends upon the quantity of the crop raised, and this depends not only upon the labor and skill of the tenant and the fertility of the soil, but also upon the many contingencies that may beset even the most prudent husbandman.
The tenant must use due diligence both in cultivating and in gathering the crop, and the landlord is entitled to a share in such a crop as the tenant by labor and diligence can harvest, but to no more. The landlord may sue the tenant for the value of his share of the crop. In such a suit I agree that it would not be a valid defense for the tenant to say that the cost of gathering the crop would be greater than its value, for he must comply with his contract. But if a thief should enter the field at night, and steal a portion of the crop, or if, without fault of the tenant, a herd of breachy cattle should break in and destroy a portion of the crop, the landlord should, under a contract such as we have here, lose proportionately with the tenant; for the agreement of the tenant, as I understand it, is not that he will give a fixed amount of rent, but only such a share in such a crop as he may be able to culivafe and gather by due diligence. He is not an insurer of the crop, nor liable for its loss by causes against which he could not have guarded by the use of care and diligence.
For these reasons, it seems to me that the expression that nothing but the act of God or the public enemy can excuse the tenant, when applied to the facts of this case, is not an accurate statement of the. law.
