Brunson v. Teague

• Decision Date: 08 May 1916
• Docket Number: 381
• Citation: 186 S.W. 78,123 Ark. 594
• Parties: BRUNSON v. TEAGUE
• Court: Arkansas Supreme Court

186 S.W. 78

123 Ark. 594

BRUNSON v. TEAGUE

No. 381

Supreme Court of Arkansas

May 8, 1916

Appeal from Crawford Circuit Court; James Cochran, Judge; reversed.

Judgment reversed and cause remanded.

Winchester & Martin, for appellant.

1. The counter-claim set up damages for the breach of a separate and independent contract. No such right exists. Kirby's Digest, § 6099; 17 Ark. 245; 27 Id. 489; 32 Id. 281; 40 Id. 75; 48 Id. 396; 89 Id. 368; 55 Id. 312.

2. No loss or damage is shown because the new dwelling and barn were not built, nor that if the ditch were dug the cultivation would have been less expensive. All these claims for damages arose out of separate and distinct contracts.

3. There was error in the court's instructions.

C. A Starbird, for appellee.

1. No sufficient bill of exceptions was filed in the court below. 101 Ark. 555.

2. The whole matter was a transaction between landlord and tenant and grew out of the same contract. Kirby's Digest, § 6099; 71 Ark. 408; 64 Id. 221. There is no error in the court's charge, nor in the verdict.

OPINION

HART, J.

L. J Brunson sued Will Teague before a justice of the peace to recover $ 30, ten dollars of which was alleged to be due for the rent of two acres of land sewed in oats and the remaining twenty for two tons of alfalfa hay furnished him as supplies. There were no written pleadings but the defendant Teague, admitted owing the plaintiff, Brunson, the amount sued for and set up as a counter-claim against plaintiff's demand certain items which will be hereinafter stated, making a total of $ 300. The justice of the peace rendered judgment in favor of the defendant for $ 140 as a balance due him on the counter-claim. The plaintiff appealed to the circuit court. The material facts are as follows:

The plaintiff had a farm comprising about one hundred and ten acres of land which the defendant was cultivating during the year 1912. In the fall of that year, the plaintiff rented the land to the defendant for the year of 1913. The defendant agreed to pay as rent one-third of the corn and one-fourth of the cotton. The defendant also testified that the plaintiff agreed to build him a new dwelling house of four or five rooms, and a new barn sufficient to accommodate six horses and the feed for them and also to dig a ditch sufficient to drain thirty-five acres of the land; that the plaintiff failed to build the dwelling house and that he was compelled to live in a house on the farm which was out of repair; that a house like the one the plaintiff agreed to build was reasonably worth for rental purposes $ 5 per month; that a barn like the one the plaintiff agreed to build had a rental value of three or four dollars per month; that thirty-five acres of the land needed ditching and that it cost him $ 2 more per acre to cultivate it than it would have cost if the ditch had been dug. Defendant admitted that the plaintiff furnished him two tons of alfalfa as supplies which was worth $ 10 per ton. He also stated that some time in February, 1913, that the plaintiff told him he had some land situated about one-fourth of a mile away which the defendant might plant in oats; that the defendant planted two acres in oats and that nothing was said about the rent; that $ 5 per acre was a reasonable rental for the two acres; that defendant had cut and used the oats for supplies. The defendant also testified that he raised forty-four bales of cotton and that plaintiff's part of the rent was eleven bales; that the farm was situated near the town of Alma; that he hauled the rent cotton there for plaintiff and the hauling was worth $ 20; that he also hauled some lumber for the plaintiff to be used on the farm which was worth $ 5.

The plaintiff testified in his own behalf and denied that it was in the contract that he should pay for hauling the cotton to the town of Alma; that the defendant had the cotton ginned in the town of Alma and that it was a part of his contract to haul the cotton to the gin. He also denied that he agreed to build the barn or to ditch the land. He testified that the year of 1913 was a dry year and that none of the land needed ditching that year. He admitted that he agreed to build a new dwelling house provided the defendant would haul the lumber and that defendant failed and refused to do so.

The jury found for the defendant in the sum of $ 130 less the $ 30 owed by the defendant to plaintiff leaving a balance due the defendant of $ 100. The court rendered judgment upon the verdict and the plaintiff has appealed.

Counsel for defendant moved the court to dismiss the appeal for the reason that no sufficient bill of exceptions has been filed in the court below. To support his contention counsel relies upon the case of Grand Lodge A. O. U. W. v. Dreher, 105 Ark. 676, 151 S.W. 435. In that case as here there was a skeleton bill of exceptions. There was a call in the bill of exceptions in the Dreher case for the clerk to insert the testimony. The bill of exceptions was signed by the circuit judge and filed with the clerk before the date of what purported to be the testimony was filed in the office of the clerk. There was nothing in the record to show that what purported to be the testimony had been examined or authenticated by the circuit judge. There was nothing in the record by which it could be determined that the purported testimony was that referred to in the call in the bill of exceptions.

Here the facts are essentially different. The call is for the clerk to copy the stenographer's report of the testimony. The record shows that a true and correct copy of the stenographer's transcript of the testimony was filed on the 13th day of September, 1915. The bill of exceptions was signed by the judge and filed with the clerk on that day. It will be presumed that the circuit judge had the transcript of the stenographer's notes before he signed the bill of exceptions and that the call referred to the transcript of the stenographer's notes which had already been filed on the same day before he signed the bill of exceptions. The defendant's motion to dismiss the appeal will therefore be denied.

Counsel for the plaintiff insists that the judgment should be reversed because the court refused to tell the jury as a matter of law that the counter-claim set up by the defendant arose from a breach of a separate and independent contract. Under Kirby's Digest, section 6099, providing that a counter-claim must be a cause of action, "arising out of the contract or transactions set forth in the complaint as the foundation of the plaintiff's claim or connected with the subject of the action," damages for breach of one contract can not be counter-claimed in an action on another contract. The court further held that unliquidated damages, even for the breach of the contract, can not be the subject of a set-off. B. A. Stevens Co. v. Whalen, 95 Ark. 488, 129 S.W. 1081.

Counsel for plaintiff claims that the rent due on the two acres of land sowed in oats arose from an independent contract and is not the subject of counter-claim, but we do not agree with them in this contention. The plaintiff leased to the defendant his farm comprising 110 acres of land. Under our statutes he had a lien not only for the rent but for the supplies which he might furnish his tenant. He furnished his tenant as...