139 S.W.2d 46 | Ark. | 1940
Subsequent to the decision of this court in Taylor v. J.A. Riggs Tractor Co.,
The claim for rent was presented to the county court and disallowed by it. On appeal to the circuit court, the claim was allowed in full, and the county, through her prosecuting attorney, has appealed from that judgment.
For a reversal, it is first earnestly contended that the court was without legal authority to compensate appellee in any amount for the usable value of the tractor. While it is true that the contract held void by this court was one of sale and purchase, with title retained in the seller until the purchase price was paid in full and that there was no provision therein for the payment of rent in case the contract should be held void, it is also true *306 that the parties entered into this contract in good faith, having been advised by able counsel of the legality thereof. Upon delivery of the tractor, it was put in use by the county in the repair, construction and maintenance of farm-to-market roads, and kept and so used for a period of four months.
Under these circumstances, we think the law will imply a contract between the parties to pay for the use of the tractor — a course of conduct required by fundamental principles of common honesty and square-dealing. The contract was made by the parties acting in good faith, and upon the advice of the then prosecuting attorney. The purposes of the contract were good, not malum in se, but merely malum prohibitum, by reason of
We think the case of Little Rock v. The White Company,
We, therefore, conclude that appellant is liable for the usable value of the tractor for the four months it had and used it.
The question that has given us most concern is, what is the reasonable rental or usable value? The county judges of Cleveland and Lonoke counties testified that they rent similar tractors from appellee at $250 per month under a contract providing that, when they have made rental payments for so many months, the tractor becomes the property of the county. Here the quarterly payments required under the contract were $545.88, or $181.77 per month, and, after making eight quarterly payments the tractor would have belonged to the county. The testimony shows that the life *308 of such a tractor is from three to five years. It must be admitted, and counsel for appellant do admit, that there is substantial evidence in the record to support a finding of $300 per month rental value. But we are of the opinion that such a sum is excessive and exorbitant in view of all the facts and circumstances surrounding the transaction. While both parties acted in absolute good faith in making the contract, they should share the responsibility and resulting consequences of its being held void equally. One was to blame as much as the other. So each should share a portion of the resultant loss. If we should figure the rental value on the depreciation of the tractor, based on its purchase price of $4,362.64 and its minimum life of three years, it would be $121.19 per month, or $484.76 for four months. If we take the quarterly payments of $545.33, as stipulated, as the rental value, the amount per month would be $181.77, or $727.08 for four months. We have reached the conclusion that neither basis would be fair and equitable to both parties. Depreciation value alone would leave nothing as compensation to appellee, and the basis of stipulated payments leaves out of consideration the element of ownership of the tractor in the county, had the payments been made. The $300 per month as fixed by the trial court omits that consideration, for, in a little more than fourteen months, the rental value would have equaled the purchase price and the county would have no ownership therein. So it appears to us that a middle ground between the depreciation value and the stipulated payments on a monthly basis would be reasonable, just, and equitable, which amount is $150 per month or a total of $600.
We, therefore, modify the judgment by reducing it from $1,200 to $600 and as thus modified, it is affirmed.
SMITH, J., dissents from modification. *309