127 Ark. 541 | Ark. | 1917
Appellant was the owner of a plantation known as the Linden Place, which she leased to the J. W. Beck Company for a term of years. This company sublet the place to one George Walker, who cultivated the land in partnership with his brother, Charles Walker, who is the appellee here and was the plaintiff in the court below. The Walkers were partners in the operation of the farm, but not in the ownership of the lease. George Walker testified that he gave Charles Walker permission to fence up a pasture or hog lot, and that Charles Walker bought the wire which forms the subject matter of this litigation and placed it around the pasture. Before the expiration of the lease Charles Walker took down the wire from the posts to which it had been attached and rolled it up and placed it in one of the buildings on the place. After the expiration of the lease he sought to remove the wire from the house where he had stored it and, permission being refused him so to do, he brought replevin to recover it.
The lease was executed in consideration of the-payment of the annual rental of 12,700.00, with a proviso that improvements and repairs might be made by the tenant in any sum not exceeding $100.00, and George Walker testified that the value of the repairs made by him always exceeded that amount.
Appellant testified that, at the time Walker took possession of the place, there was a fence around the pasture where appellee placed his wire. That she saw the pasture fence after the wire had been put on it by appellee and that it was in the same location as the old one surrounding the pasture, used for the same purpose, and that she neither gave permission for it to be placed there nor for its subsequent removal.
The court instructed the jury to return a verdict in favor of appellee, which was accordingly done, and this appeal has been prosecuted to reverse that action.
Appellee defends the action of the court in directing a verdict in his favor upon the ground that the record presents no disputed question of fact. It is urged that the tenant built the fence to promote his more convenient use of the premises and that such improvements are removable, as are mere trade fixtures. This is the law in relation to improvements of that character. But the proof on appellant’s part, as has been stated, was to the effect that the fence in question was one of the permanent fences which the tenant under the lease was in duty bound to maintain in repair, and that any repairs thereof would have been, and were, compensated by the annual allowance of $100.00 for that purpose. This question should have been submitted to the jury, and for the error in failing so to do the judgment will be reversed and the cause remanded.