134 Ark. 345 | Ark. | 1918
Appellee, a tenant of appellant, brought suit against him in the Arkansas Circuit Court to recover a balance of $85.11 on open account, and $3,109.40 as damages to the rice crop on account of an alleged breach of covenant by appellant to repair the machinery used in pumping water on the rice fields. Appellant denied the material allegations in the complaint; charged that the loss or damage to the rice crop on account of a shortage of water was due to the careless and negligent operation of the pumping plant by appellee, and claimed a judgment over against appellee on open account of $118.44.
The cause was submitted to the jury upon the pleadings, evidence and instructions of the court, and a verdict was rendered against appellant for $900 damages, and the accounts were offset one against the other. A judgment was rendered in accordance with the verdict, from which an appeal has been prosecuted to this court.
The clause in the rental contract constituting the basis of this suit is as follows:
“It is understood and agreed by both parties hereto that the party of the first part (appellant) is to make any necessary repairs to machinery, should any be needed, and to turn the. machinery and improvements over to the party of the second part in good state of repairs; and that should party of the second part have some unavoidable break-down or mishap during the term of this lease the party of the first part hereby agrees to repair any such broken part or parts of the said machinery at its own expense.”
There was evidence tending to show that the engine, boiler and other machinery were not in a good state of repair at the time they were turned over to appellee, and that during the term of the lease unavoidable “breakdowns” occurred, which were not repaired by appellant, and that this breach of covenant for repairs on his part resulted in damages to the rice crop.
There was also evidence tending to show that the machinery was in a good state of repair when turned over to appellee and that the damage resulting to the rice crop from a shortage of water was occasioned by the careless and negligent manner in which appellee operated the pumping machinery after it was turned over to him.
Appellee tried the case in the circuit court upon the theory that if appellant breached the covenant for repairs he could, in any event, recover as damages the difference between the net value of the rice he did raise and the net value of the rice he could have raised. The court so instructed the jury. • '
“Where there has been a breach of an agreement on the part of the landlord to repair, the general rule for the measure of the damages growing out of such breach is that, where the repairs to be made are extensive, and where the cost thereof would be excessively large and expensive in comparison with the amount of the rent, the diminution in the rental value of the property by reason of such breach or the difference between the rental value of said property without such repairs and the rental value of the property with such repairs would be the measure of the damages recoverable. But where the character of the repairs are not extensive, and are not thus costly and expensive in comparison with the rent, the measure of the damages caused by a breach to make such repairs would be the cost thereof. It is incumbent upon the party claiming the damages growing out of such a breach to prove the actual cost of making such repairs, and by such evidence to show that the expense of making same would not be slight, but large and excessive in comparison with the amount of the rent.”
We deem it unnecessary to discuss other assignments of error at this time.
For the errors indicated, the judgment is reversed and the cause remanded for a new trial.