Bates v. Simmons, 75--389

• Citation: 259 Ark. 657,536 S.W.2d 292
• Decision Date: 03 May 1976
• Docket Number: No. 75--389,75--389
• Parties: Philip C. BATES and Shirley J. Bates, Appellants, v. George R. SIMMONS and Jewel Ann Simmons, Appellees.
• Court: Supreme Court of Arkansas

Page 292

536 S.W.2d 292

259 Ark. 657

Philip C. BATES and Shirley J. Bates, Appellants, v. George R. SIMMONS and Jewel Ann Simmons, Appellees.

No. 75--389.

Supreme Court of Arkansas.

May 3, 1976.

Gean, Gean & Gean by Roy R. Gean, Jr., and Lawrence W. Fitting, Fort Smith, for appellants.

N. D. Edwards, Van Buren, for appellees.

FOGLEMAN, Justice.

Appellants brought this action to rescind a contract for the purchase of property from the appellees, asserting misrepresentation, mutual mistake and failure of consideration. The contract was entered into on November 24, 1969. For a consideration of $17,500, payable at the rate of $150 per month, plus interest, and an additional payment of $500 per year beginning in 1970, the Simmonses sold the Bates property described as:

All of Block D, Town of Graphic, Arkansas, including the store building, dwelling house and all other structures and improvements of every kind, sort and description situated on said property.

The store building was not located on Block D, but on adjacent property, and the purchasers were put in possession and occupied a dwelling house on Block D and the store building at least until May, 1975, when they were evicted from the store building by William Roberts, who had purchased the land on which the store building was located at a sale for partition among the owners. The Bates purchase was made upon the representation that the Simmonses held a 99-year lease on the store building site.

Appellants made all payments called for in the contract prior to the eviction and met all other contractual obligations except for keeping the property insured against loss by fire and windstorm. Appellants filed this suit shortly after the eviction, alleging that the store building was material to the bargain and that, because there was a fatal defect in the seller's title thereto, appellants had sustained 'damages' in the sum of $12,400. This figure, however, represented the total payments made by appellants under the contract and appellants actually sought to return the lot purchased and the dwelling house, cancel the contract and recover these payments.

Appellees answered with a counterclaim labelled 'cross-complaint,' alleging that appellants had breached the contract by failing to carry insurance on the property after July 16, 1971, and by disposing of store fixtures and equipment. Appellees asked that the contract be terminated and that they have judgment for the balance due under it.

The chancery court, by decree, found appellants had defaulted in the performance of the contract by failing to keep the property insured and that appellees had defaulted because they were unable to deliver the store building and held that the contract became null and void in March, 1975, at the time of the purchase of land on which the store building was located by Roberts. The court held that appellants occupied the premises as tenants after March 1, 1975, and entered judgment in their favor for monthly payments in excess of $100 per month made thereafter and prorated the annual payment. The court also decreed that all prior payments made by appellants under the contract be treated as rent, and that damages to the two parties were too nearly equal to permit the award of any judgment in any specific amount to either. Appellants were given 30 days within which to vacate the property.

Appellants' first point for reversal is the action of the chancellor allowing appellees to amend their pleadings at the conclusion of the evidence on behalf of appellants. Actually the motion was made at the very beginning of the trial, when appellees made an oral request that their pleadings be amended to ask allowance of credit against any recovery by appellants for the cost of restoring the house to its condition when sold, for the store business and fixtures and for the reasonable rental value of the property. The chancellor took this oral motion under advisement, but granted it after denying appellees' motion to dismiss the complaint for insufficient evidentiary support.

Appellants complain that this request came some three months after issue was joined and radically changed the cause of action for foreclosure under the contract originally asserted in appellees' pleadings. In considering the court's action, we note that a variance between pleading and proof is not to be considered as material unless it had actually misled the adverse party and that the court may, at any time, in the furtherance of justice, amend any pleadings by inserting new allegations material to the case, upon such terms as may be proper. Ark.Stat.Ann. §§ 27--1155 (Repl.1952) and 27--1160 (Supp.1975).

The chancellor in allowing the amendment offered appellants a continuance if they were taken by surprise, but their attorney stated that they would like to dispose of the case on that day and did not want to take any additional time unless absolutely necessary. We note that both appellant Philip Bates and an expert witness testified on behalf of appellants as to rental values.

We will not reverse the trial court's action on requests for amendment of pleadings at the trial unless there has been a manifest abuse of discretion and material prejudice to the adverse party. Rucker v. Martin, Phillips & Co., 94 Ark. 365, 126 S.W. 1062; Cole v. Branch & O'Neal, 171 Ark. 611, 285 S.W. 353. See also Hogue v. Jennings, 252 Ark. 1009, 481 S.W.2d 752. Since appellants were seeking a rescission, the parties were entitled to be placed, as nearly as circumstances would permit, in their respective positions at the time of the sale. Berland's Inc. of Tulsa v. Northside Village Shopping Center, 447 P.2d 768 (Okl.1968); Cruse v. Clawson, 137 Mont. 439, 352 P.2d 989 (1960); James v. Hogan, 154 Neb. 306, 47 N.W.2d 847 (1951). An amendment specifically requesting that this be done in the manner asked did not so substantially change the issues that allowing the amendment was an abuse of discretion unless it could be said that appellants had been so misled that the court's action took them by surprise. The court's offer of a continuance was proper under the terms of Ark.Stat.Ann. § 27--1160. The failure to take advantage of it or to ask for a continuance after appellants' evidence was heard certainly indicates that appellants' surprise was not so great that they felt unable to controvert appellees' evidence on this point. We find no manifest abuse of discretion in the court's action. See Royal Service Co. v. Whitehead Construction Co., 254 Ark. 234, 492 S.W.2d 423.

It appears to us that there was error in the holding that appellants were in default for failure to keep the property insured. We find a clear preponderance of the evidence to indicate that the failure to carry this insurance for some four years was known to Mr. Simmons. The insurance was cancelled in July, 1971 because the carrier discontinued the writing of such insurance in unincorporated areas, such as Graphic. When this was reported to Simmons, he requested that Mr. Bates obtain insurance elsewhere. Bates testified that he was able to find only one company writing this insurance in Graphic, but the premium was $54 per year per $1000 of value as against $8 previously paid. Bates testified that when Simmons inquired he told Simmons he could not afford the insurance at this price, and that Simmons neither objected nor requested Bates to obtain the insurance or to surrender the property. Simmons does not appear to have actually denied this testimony. He did say that he never told Bates that he did not require insurance. It does clearly appear that appellees did not assert any rights arising from this alleged default until they filed their 'cross-complaint' in this case. Any error in this respect, however, is harmless because a clear preponderance of the evidence shows appellants' entitlement to rescission and the trial court did not give judgment for the balance due under the contract. Rather than do so, the court attempted to restore the parties to the situation in which they were when the contract was made.

Appellants also complain of the trial court's finding that they were in default for failure to defend the title to the store building. The evidence shows that Mr. Bates had discussed the situation with Mrs. Simmons shortly after the service of process in a partition suit brought by co-owners of the land on which the building was located. He had given her a copy of it, which she promptly returned. No formal demand was made upon appellees to defend the title. Mr. Bates testified that he asked Mr. Simmons to deliver a copy of the 99-year lease to the attorney for the plaintiffs in the partition suit. He said that he took no other action to protect his rights relative to the store building because this attorney assured him that the store building belonged to the Bateses and that the land beneath it was not involved in the partition suit. He also stated that the heirs who were parties to the partition suit had agreed that he was entitled to use the store building site under a 99-year lease. This lease had not been mentioned in the contract of sale, no assignment of it to appellants was ever made, and Mr. Bates only asked Mr. Simmons to put a piece of paper purported to be the lease in a safety deposit box. Appellants took no steps to defend the partition suit, or to intervene in it, to remove the building or to contest the right of the purchaser at the partition sale to possession of it. There was evidence that the building could have been moved onto Block D.

Even if there were a duty on the part of the appellees to defend in the partition suit, appellants might well have acted...