148 Ark. 548 | Ark. | 1921
(after stating the facts). It is earnestly insisted by counsel for the plaintiffs that the evidence is not legally sufficient to support the verdict, and in this contention we think counsel are correct. Under the terms of the lease contract, the rent was to be finally paid on the first of November of each year. This provision was for the benefit of the lessors and might be waived by them. According to the testimony of the defendant, they waited on him until some time after the first of the year to pay the rent and supply account. Wade had been unable to supply himself, and,.some time after the execution of the lease contract, he made an agreement with A. D. Malone to furnish him with merchandise and supplies with which to make a crop in 1919. Malone waited for Wade to pay him his account for supplies and the amount due as rent until the 5th day of February, 1920. Malone and Harris owned the land as tenants in common. Tenants in common hold by several and distinct titles, but by unity of possession. The reason is, that none knoweth his own severalty, and therefore they all occupy promiscuously. Firemen’s Insurance Co. v. Larey, 125 Ark. 93.
Therefore, under section 6890 of Crawford & Moses ’ Digest, Malone would be the landlord of Wade, and as such landlord would have a lien upon the crop raised upon the demised premises for the value of advances made by him to Wade to make a crop during the year 1919. Malone brought suit in the chancery court to foreclose his lien for the amount of his supply account and the rent due. A decree was rendered in his favor against Wade for the balance due of $840.88. Wade made no defense to the foreclosure suit and made no effort to finish paying his supply account or the balance of the rent due for the year 1919. Having a lien for the rent and supplies, Malone had a right to apply the proceeds first to the payment of the supply account, and this left a balance of over $800 on the rent. These facts are established by the undisputed evidence and constituted a breach of the lease contract which warranted the lessors in evicting the lessee from the premises. -
It is true Wade testified that Malone led him to believe that he would carry him over, and that Scroggin had promised to pay off his indebtedness to the plaintiffs. Wade knew, however, when notice to quit was served on him on the 6th day of February, 1920, that his lessors did not intend to wait on him any longer, and it devolved on him to make arrangements to pay his rent, or to forfeit his right to longer occupy the premises. Yet, after this time, he made no effort to get into communication with Scroggin, or to carry out his contract with the plaintiffs. He did not even make any defense to the foreclosure suit. Therefore, the undisputed facts, as disclosed by the record, warranted the plaintiffs in evicting him from the premises.
Complaint is also made by the plaintiffs as to the instruction given by the court on the measure of damages. We do not deem it necessary to set out this instruction. Suffice it to say that the instruction complained of follows the rule laid down in McElvaney v. Smith, 76 Ark. 468. In that case the court said:
“When a landlord unlawfully evicts a tenant from the premises, the tenant is entitled to recover as damages whatever loss results to him as a direct and natural consequence of the wrongful act of the landlord. If the rental value of the place from which he is evicted is greater than the price he agreed to pay, he may recover this excess and, in addition thereto, any other loss directly caused by the eviction, such as the expense of removal to another place.”
For the error in not directing a verdict for the plaintiffs, the judgment will be reversed and .the cause remanded for a new trial.
