Chittim v. Gossett

• Court: Arkansas Supreme Court
• Writing for the Court: Wood
• Citation: Chittim v. Gossett, 228 S.W. 393, 148 Ark. 654 (Ark. 1921)
• Decision Date: 14 March 1921
• Docket Number: (No. 222.)
• Parties: CHITTIM v. GOSSETT.

228 S.W. 393

CHITTIM v. GOSSETT.

(No. 222.)

Supreme Court of Arkansas.

March 14, 1921.

Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor.

Action by Kate A. Chittim against R. E. Gossett, who cross-complained, the cause being transferred to the chancery court. From a decree for defendant, on his cross-complaint, plaintiff appeals. Reversed and remanded with directions.

Jno. D. Shackleford, of Little Rock, for appellant.

Fred Isgrig and Gardner K. Oliphint, both of Little Rock, for appellee.

WOOD, J.

This action was brought by the appellant against the appellee in the Pulaski circuit court. The appellant alleged in substance that she was the owner of certain lots in the city of Little Rock, which she had leased to the appellee; that appellee was in arrears for rents, and after due notice had refused to pay; that the rents under the lease contract were $150 per month; that appellee went into possession under the lease July, 1920, and had refused to pay his rent since August 1, 1920. She prayed for damages in the sum of $150 for rent and $50 for the unlawful detention and for possession of the property.

The appellee answered, admitting that he was in possession of the property under a contract of lease, but denied that he was under contract to pay $150 per month. He made his answer a cross-complaint, and set up that he had entered into a lease contract with the appellant by which he had rented the property at $125 per month for a period of five years; that in pursuance of this contract he had taken possession of the property, and had made alterations and repairs and had incurred expense in so doing, in order to make the place satisfactory as a hotel; that when the first month's rent was due he tendered to the appellant the sum of $125, which the appellant refused to receive. He also set up that he had, on the first day of each month since, tendered to the appellant the monthly rental of $125, which she refused to take. He alleged that he was ready and willing to pay the rental according to the contract as it came due, and also to pay the rent already due. He alleged that he was entitled to the possession of the property under the contract for a period of five years.

The cause was, by consent of the parties, transferred to the chancery court. The cause was heard upon testimony taken ore tenus before the court. The appellee testified substantially as follows: Some time between the 1st and 10th of July, 1920, he had a talk with the appellant in regard to leasing the Arlington Hotel and annex, which at that time was occupied by a Mrs. Lewis. Appellant said for witness to buy her out. Appellee invested $2,000 in buying the furniture and fixtures from Mrs. Lewis. Before closing the deal he saw the appellant in regard to the rental, and appellant said that witness could have the property for $125 per month. Witness told appellant that he could not afford to make an investment for less than five years, and appellant replied:

"You can have it as long as you want it, for I know you will run the right kind of a house."

Witness then stated that he would draw up the papers, if it was agreeable to appellant, for five years. Appellant replied:

"My attorney, Mr. Miles, is out of town now, and as soon as he can get in and get to it I will have the papers drawn up."

She told witness "to go ahead and take possession; that everything was all right." Witness asked appellant if there were any reservations, and appellant stated she would want to reserve one side of the garage. She said that she would fix it and turn it over to witness. Witness told her that there was considerable repair to do about the house, and she replied that she would fix it as good as her own house. The repairs were finished, and the house was turned over to witness on the 27th of July. Witness relieved a lady he bought out. Appellant stated that she would not charge witness any rent for the fractional part of the month on the annex. On the 1st of August witness offered to pay appellant $125 for rent on the entire building, and she said she could not take it. Witness asked appellant why she agreed with him to take the $125, and she said:

"I have been offered more money. I can get more money than that for it, and I can't take that when others will pay me more."

Witness proposed to have his attorney write the lease, and appellant objected, telling witness to wait until her attorney returned, who would fix it himself, and told witness "in the meantime to go ahead; that everything would be all right." In order to hold his roomers, witness had to make certain repairs on the house costing him $73, and he paid also the $2,000 for furniture and fixtures. In doing this he relied perfectly upon the appellant's agreement. Witness had tendered the appellant $125 per month ever since, and was prepared to pay it to her any time she would accept it.

Witness Houck testified that he heard the conversation between the appellee and appellant about July 27, 1920. Appellant told the appellee she wanted him to pay some money, and appellee replied:

"I will give you money for both houses, $125, the 1st."

Witness was present on the 2d of August when the appellee wrote out a check in favor of the appellant for $125 and laid it on her breakfast table, where she was eating breakfast. Appellant said:

"I can't accept it until I see my lawyer. I have been offered more money than that. It ain't right."

The appellee seemed surprised, and told her that was the understanding. Witness was asked the following question:

"Do you call to mind her having said to him that he should have seen her and talked with her about the rent before he bought Mrs. Lewis out?"

He answered:

"I think there was something said about that Mr. Gossett ought to have seen her before he got this other woman out."

The appellee said that $125 was what they had agreed upon for both houses, and appellant said that it was not right; that she had been offered more money than that, and could not take it until her lawyer came back.

The appellant testified that she had never seen the appellee before he came there the first time and asked her to ask Mrs. Lewis if she would sell out. Witness did not hear anything more until Mrs. Lewis told witness that she had sold out to the appellee. A week or such matter thereafter the appellee came and told witness that he had bought Mrs. Lewis out. Witness told appellee that he could not have the hotel for what Mrs. Lewis was paying for it, and the appellee asked witness how much more rent witness wanted. Witness told him that she wanted $100 a month for the hotel and $50 per month for the annex. Appellee asked witness:

"What about giving me a five-year lease on both places?"

Witness replied:

"Well, I would not agree to give you any lease at all on it until my attorney comes home. He is out of the city. Whatever he says, I will abide by."

Witness testified to the meeting and conversation between herself and the appellee on the 2d of August. She stated that at that time appellee offered her a check of $125 to pay for the first month's rent. She told him that she could not accept it; that it was not enough. In the course of the conversation she also told him that he should have talked to her before he bought out Mrs. Lewis. Witness was asked if there was any agreement between herself and appellee about keeping up the repairs, and answered that there was not; that she never made any agreement with him about the house. Witness denied emphatically that appellee had talked to her about what rent she would charge before he bought the furniture from Mrs. Lewis. Appellee stated to witness that he was about to buy out Mrs. Lewis, and asked witness if he could depend on witness letting him have the annex, and witness told him that he could. "The talk we had concerning that was that appellee was to pay $50 per month for that." She denied categorically that she had rented the two places to him for five years for $125 per month. Appellee took charge of it without having any agreement to pay $125 per month. She also denied that in the conversation with the appellee on the 2d of August she said she could not let him have the places because somebody had offered her more money. Witness testified that she had the repairs made because Gossett was anxious to get it, and it needed to be done anyway. She was making improvements for the appellee. She had the roof fixed before the appellee and witness had talked about the price.

Judge Miles testified that, in a conversation he had with the appellee, the appellee claimed that he had made a contract with the appellant to...