43 S.W.2d 734 | Ark. | 1931
STATEMENT OF FACTS.
Appellant sued appellees in the common pleas court to recover $349.60, balance alleged to be due for the rent of a farm. Appellees defended the suit on the ground that there was a shortage in the acreage of the land rented. By way of cross-complaint, appellees sought to recover the sum of $349.60 from appellant on the ground that by *464 mistake they had paid appellant too much rent for the land.
From an adverse judgment, appellant appealed to the circuit court. There the case was tried upon facts which may be briefly stated as follows: On the first day of January, 1927, appellant leased by written contract for the term of one year to P. E. Rogers Company, a partnership composed of P. E. Rogers, Ike Miller and J. L. Williams, certain lands which are specifically described according to government survey, each of which had the number of acres set forth, ending with the following "containing in all 487 acres." The term of the lease commenced on the 1st day of January, 1927, and ended on the 31st day of December, 1927. The next clause provided that the rent should be in the sum of $7 per acre. On the 21st day of December, 1927, the same parties entered into a written lease for the same lands under the same description. This lease provided that the leased lands contained in all 487 acres, and that the rent should be in the sum of $8 per acre. The lease provided that the term should commence on the 1st day of January, 1928, and end on the 31st day of December, 1928. Miller and Williams paid the rent on the land for 1927 for the amount of 487 acres at $7 per acre. They gave a rent note for the 1928 rent for the rent of 487 acres at $8 per acre. Appellees refused to pay all the rent for the year 1928 on the ground that there was a shortage of 43.7 acres in the leased land. Appellant had a survey of the land made by a civil engineer in 1928. The description in both lease contracts describes 50 acres in the north half of the south half of section 24; and on the direct examination, the civil engineer testified that 50 acres of land is absolutely contained in that description. On cross-examination, he stated that there was approximately 80 acres in that subdivision and that it was practically all in cultivation. Appellees admitted that they paid all the rent for the year 1927, but claimed an over payment by them because of a shortage of 43.7 acres. In 1928 they refused to pay for 43.7 acres which they claimed *465 were not in cultivation on the leased premises. They had the premises surveyed, and the testimony of the surveyor showed a shortage of that amount.
According to the testimony of P. E. Rogers, he made the contract with appellant to lease his land for 1927 for his firm, which consisted of himself, Ike Miller and J. L. Williams. The partnership was dissolved in March of 1927, and Rogers turned over the 50 acres of land in section 24, above referred to, to a Mr. McAdams, who worked it. He and Mr. McAdams examined the tract of land and estimated that it contained 50 acres. Rogers selected all the lands which his firm recited from appellant in 1927. When McAdams and Rogers agreed on the land in section 24 as containing 50 acres, McAdams was working for appellee, Williams.
According to the testimony of Ike Miller, appellees overpaid the rent on about 40 acres or more of land in 1927. According to the testimony of J. L. Williams, appellees had leased the land from appellant during the years 1926, 1927 and 1928. A canal was dug through the land in the latter part of 1927 or the early part of 1928. The division line of the land described as 50 acres of cleared land in the north half of the south half of section 24 was a ditch and road. Appellees first leased these lands in 1926. Williams first stated that he had a survey of the leased lands made in October, 1928, and that this showed a shortage of 43.7 acres. He believed that he had the number of acres of cleared land set out in the lease until 1928. Witness was asked if he believed that he had the full amount of cleared land leased up until 1928, and answered, "First, in 1927, I made a good many trips down there, and that is when I really made up my mind that we were really paying for more than we were getting." Continuing, he said that up to that time he had relied on the acreage as stated by appellant and paid him accordingly. In another part of his deposition he was asked the occasion of the appellees having the plat made and stated that there were two reasons: one was that Miller and he had been on the leased land, that Williams *466 told Miller that he did not believe that they had got all they were paying for. Then, after the canals were dug, they also wanted to see how much land the canals took up. Continuing, Williams said that the canals were dug in the latter part of 1927 or in the early part of 1928. Other facts will be stated or referred to in the opinion.
The jury found a verdict for appellees on appellant's complaint. The jury found for appellees against appellants on their cross-complaint in the sum of $240, with interest at six per cent. from November 15, 1927. The case is here on appeal.
(after stating the facts). The general rule is that money paid under a mistake of fact may be recovered. C. R. I. P. Ry. Co. v. Lena Lumber Co.,
In the application of this rule to the present case, the verdict of the jury in favor of appellees upon they *467 complaint of appellant must be sustained. Each party had the land surveyed in 1928, and there was a conflict in the testimony as to whether there was any shortage in the leased land. The appellees withheld the rent for 43.7 acres of land in the fall of 1928 from the amount due for rent for that year because of this alleged shortage. The question was submitted to the jury, and the jury by its verdict found in favor of appellees. The testimony on the question of whether there was a shortage in the land for the year 1928 being in conflict, the verdict of the jury is binding upon this court upon appeal, and the judgment on that branch of the case must be affirmed.
On the cross-complaint, the facts are quite different. On that branch of the case, appellees sought to recover against appellant on their claim that they had overpaid the rent for 1927 by mistake. We do not think there was any evidence upon which to submit this question to the jury. Appellees did not claim a mistake as to the acreage. According to the testimony of appellant, there was no mistake as to the acreage. According to the testimony of Rogers, a member of the firm which rented the land for the year 1927, there was no mistake as to the acreage. He and McAdams, who worked for Williams, examined the tract where it is claimed the shortage exists and decided that there were 50 acres in it. Williams and Miller, as members of the partnership with Rogers, were bound by the latter's act. The ground of liability of one partner for the acts of the other is that of implied agency within the scope of the partnership. Stephens v. Neely,
Besides the testimony above referred to, that of Williams himself, shows that when the rent was paid in the fall of 1927, they made the payment with knowledge of all the facts or under such circumstances that they were affected with such knowledge. Under the authorities above cited, they cannot recover the payment upon the ground that there was a mistake in the acreage. *468
In this connection, it may be stated that, where a person has sufficient information to put one of ordinary intelligence upon inquiry, he shall be deemed to know what the inquiry would disclose. Jordan v. Bank of Morrilton,
Williams was asked about a plat of the land exhibited in evidence which he caused to be made in October, 1928, and was asked what was the occasion of it being made. His answer was, "Well, there were two reasons: This was the first reason. Mr. Miller and I went down there often. Quite a number of times I told Mr. Miller I did not believe we had the acreage we were paying for. Then, after the canals were cut, we decided we would have the land surveyed. And we also wanted to see how much land the canals took up." Continuing, he said that the canals were dug in the latter part of 1927 or the early part of 1928. Further on in his testimony, Williams said that he first believed in 1927 that there was a shortage in the acreage. He said that he had made a good many trips on the land and made up his mind that they were paying for more land than they were getting. Williams was a planter of large experience and was, according to his own testimony, capable of estimating the quantity of land in cultivation upon a given tract. It is inferable from his own testimony that he believed t, here was a shortage in 1927. It is true he said that they did not have the survey made until after the canals were dug in the latter part of 1927 or the first part of 1928. He states, however, that he made frequent trips down there in 1927, and that was when he first believed that there was a shortage in the acreage. He had worked the lands in 1926, and it was his duty to have ascertained about the shortage before he paid the rent in the fall of 1927. Not having done so, he will be deemed to have knowledge of the shortage because he was put on inquiry as to the shortage by his knowledge and judgment of the land during the frequent trips he made there before he paid the rent. Therefore, according to his own testimony, he paid the rent with *469 full knowledge of the alleged shortage. Miller, his partner, was bound by his acts; and they were not entitled to recover on their cross-complaint because they made a voluntary payment of the rent with knowledge of the shortage and under such circumstances that they are affected with such knowledge.
Therefore there was no evidence upon which to submit the issue raised by the cross-complaint to the jury, and the court erred in so doing. No exceptions were necessary. A new trial was asked on the ground that the verdict was contrary to the law and the evidence under 1311 of Crawford Moses' Digest. The motion for a new trial was sufficient to raise the question as to whether the verdict was sustained by sufficient evidence. Naylor v. McNair,