Basin Park Hotel Association v. Arkansas Company

• Decision Date: 16 January 1922
• Docket Number: 84
• Citation: 236 S.W. 275,151 Ark. 322
• Parties: BASIN PARK HOTEL ASSOCIATION v. ARKANSAS COMPANY
• Court: Arkansas Supreme Court

236 S.W. 275

151 Ark. 322

BASIN PARK HOTEL ASSOCIATION v. ARKANSAS COMPANY

No. 84

Supreme Court of Arkansas

January 16, 1922

Appeal from Carroll Circuit Court, Western District; W. A. Dickson Judge; reversed.

STATEMENT OF FACTS.

The Arkansas Company, a corporation, brought this action in the circuit court against the Basin Park Hotel Association operating under a declaration of trust, and the members thereof, to recover the sum of $ 483.95 alleged to be due for hotel supplies furnished by the plaintiff to the defendants.

The suit is based upon a lease by the plaintiff to the defendants of a hotel in the city of Eureka Springs, Ark., and the alleged voluntary surrender of the leased property by the defendants during the term of the lease.

The defense of the defendants to the suit was that they had been evicted by a mortgagee under a mortgage given prior to the execution of the lease contract. The defendants by way of counter-claim asked judgment for damages against the plaintiff on account of said eviction.

The lease in question was in writing, and was executed in duplicate on the 6th day of March, 1919. By its terms the Arkansas Company leased to the Basin Park Hotel Association a hotel in the city of Eureka Springs, Ark., together with all the fixtures, furnishings and furniture therein. The lessees agreed to pay as rent $ 300 cash for the month of May, 1919 and $ 300 per month rent in advance to April 1, 1920. The contract also containing the following:

"The right and option is hereby given to the party of the second part to lease said hotel and contents under the same terms and provisions of this lease for a period of two years more from April 1, 1920, at the rental of $ 350 per month, to be paid in advance; it being understood that if the lessees desire to take advantage of this option to operate and lease said hotel for the two-year period given them April 1, 1920 that they shall, forty days before the first of April, 1920 give written notice to the party of the first part of their desire and intention to take advantage of this option for two years more.

"The party of the first part hereby agrees, as a part of the consideration for this lease, that it will supply a sufficient amount of dishes and linens with which to operate said hotel; and that it will also, upon the request of the party of the second part, at once furnish a range for the kitchen.

"Before the 1st day of May, 1919, an inventory shall be taken by the parties hereto, of all the furniture, queensware, linens, etc., of said hotel, a copy of which inventory shall be kept by each party hereto; and added to said inventory shall be such supplies as the party of the first part supplies under the terms of this lease, and, at the expiration of this lease, the party of the second part is to return to the party of the first part the property shown upon said inventory, wear and tear excepted.

"It is understood that the party of the second part is to pay all water bills due the city for water furnished to the hotel, as well as electric lights and any other bills that may be a lien upon the hotel property by reason of the operation of said hotel by party of the second part; the party of the first part to keep said property insured and to pay the taxes on same.

"The party of the first part is to at once begin work and have the office and dining room of said hotel painted, and is from time to time to paint the halls, rooms or walls of the building as may be needed."

Possession was given to the Basin Park Hotel Association of the hotel and its contents. On June 28, 1915, the Arkansas Company executed a mortgage to the First National Bank of Paris, Texas, on the hotel and its contents. The mortgage was given to secure a note for $ 31,000 of the same date, payable to the bank on Jan. 1, 1920, and signed by the Arkansas Company. It was expressly agreed between the parties that the failure to pay any installment of interest due on the note should at the option of the holder make the note and entire indebtedness due. The Arkansas Company made default in the payment of the mortgage indebtedness according to the tenor thereof, and the bank brought suit against it in the Federal court to obtain judgment on the note and a foreclosure of the mortgage. The Basin Park Hotel Association and its members were also made defendants to the action.

On Oct. 14, 1919, judgment was rendered in favor of said bank against said Arkansas Company for the amount of the mortgage indebtedness and a foreclosure of the mortgage was also decreed. The decree also contained the following:

"That the purchaser at such sale shall take said premises free from any claim by the Basin Park Hotel Association or any lease of said premises or property, and shall have the option to consider any such lessee as tenant of said purchaser and collect rent therefrom, or to disaffirm such lease or leases and take immediate possession of such premises or property so purchased."

Pursuant to the decree on the 25th day of October, 1919, the commissioner appointed by the court advertised the property for sale on the 29th day of November, 1919, according to the directions contained in the decree. The notice of sale contained the following provisions:

"Purchaser at such sale will take said premises free from any claim by the Basin Park Hotel Association, or any lease of said premises or property, and will have the option to consider any such lessee as tenant of such purchaser, and collect rent therefrom, or to disaffirm such lease or leases, and take immediate possession of such premises or property so purchased upon confirmation of sale and execution of deed."

On the 29th day of November, 1919, the property was duly sold by the commissioners, and was bid in by the mortgagee. On the 5th day of January, 1920, the sale was duly confirmed by the court.

Jas. A. Smith, cashier of the First National Bank of Paris, Texas, was a witness for the plaintiff. According to his testimony, he was in charge of the foreclosure proceedings which were brought in the Federal court at Harrison, Ark., and the bank became the purchaser at the foreclosure sale, but never served any notice on the Basin Park Hotel Association to vacate the hotel. The bank refused to recognize or accept the lease held by the Basin Park Hotel Association. The mortgagor agreed to convey the mortgaged property to them in satisfaction of the mortgaged indebtedness, but they refused to accept this because the manager of the Basin Park Hotel Association claimed that under the lease he had a right to extend certain amounts in repairing the hotel, and the bank was not willing to accept the lease unless the rents were paid to it without any deductions whatever. The bank did not issue any orders for the lessees to vacate the premises, but it refused to accept the lease held by the Basin Park Hotel Association. The bank decided when it became necessary to foreclose the mortgage on the hotel to have it cleared of the lease at the same time, and the lessees were made defendants to the foreclosure proceedings.

F. O. Butt was the attorney for the bank in the foreclosure proceedings. According to his testimony, he had a conversation with Mr. Manning, the manager of the Basin Park Hotel Association, about the lease. Manning claimed that under the terms of the lease they were entitled to certain allowances for repairs and expenditures made by them. The bank was willing to extend the lease if the lessees would waive their claim for improvements and expenditures and pay the rent to the bank. Otherwise, the bank would not recognize the lease, but told Manning personally that if the bank became the purchaser at the foreclosure sale it was not ready to take the premises over and asked Manning if he would hold on for a week or ten days.

According to the testimony of W. M. Duncan, president of the Arkansas Company, the company did not owe anything to the lessees for improvements and expenditures made by them, and the lessees were indebted to the lessor for the amounts claimed in the complaint.

H. G. Manning, the manager of the hotel, was a witness for the defendants. According to his testimony, the defendants took possession of the hotel under the lease on the 20th day of March, 1919, and gave up possession of it on the 17th day of December, 1919. He gave an itemized statement of the amounts expended by the lessees under the terms of the lease, and these items aggregated the sum of $ 708.78. Manning talked with Duncan about allowing these items on several occasions, and at first Duncan did not deny that they were proper charges, but wanted to postpone the payment. The lessees paid the rent in accordance with the terms of the lease. The mortgagee refused to allow the lessees to continue in possession of the hotel unless they would yield their claim for expenditures made under the lease against the lessor and would agree to pay it the rent.

The jury returned a verdict for the plaintiff in the sum of $ 247 and for the defendants on their counterclaim in the sum of $ 300. Whereupon the court rendered judgment in favor of the defendants on their counterclaim in the sum of $ 53.

The defendants have duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

J. N. Saye and W. G. Riddick, for appellant.

Appellant was evicted by paramount title. Such being the case, it could claim the eviction without waiting to be actually evicted by judicial proceeding. 16 R. C. L., Landlord and Tenant, § 458; 24 Cyc. 1059; 20 N.E. 198; 173 N.W. 563; 46 N.Y 370-372; 9 N. J. Law, 139. There was no breach of the terms of lease by failure to pay the rent, nor could there have been such breach without the written notice provided for therein. On the...