Coley v. Westbrook

• Decision Date: 11 June 1945
• Docket Number: 4-7662
• Citation: 188 S.W.2d 141,208 Ark. 914
• Parties: Coley v. Westbrook
• Court: Arkansas Supreme Court

188 S.W.2d 141

208 Ark. 914

Coley v. Westbrook

No. 4-7662

Supreme Court of Arkansas

June 11, 1945

Appeal from Saline Circuit Court; Thomas E. Toler, Judge.

Reversed.

J B. Milham and Gladys Wied, for appellant.

McDaniel Crow & Ward, for appellee.

OPINION

Smith J.

This appeal is from a judgment at law rendered upon the verdict of a jury, and the case is here without a bill of exceptions. We may, therefore, consider only such errors as appear from the face of the record. However, the errors complained of appear from the pleadings and the judgment, and we may therefore consider them. The opinion in the case of Coley v. Westbrook, 206 Ark. 1111, 178 S.W.2d 991, recites the facts out of which the case arose.

After the affirmance of the judgment in the case cited, the present suit was filed. The complaint recites that after the affirmance of that judgment Mrs. Coley, the tenant, vacated the property and tendered the sum of $ 150.75, as rent, this being the rent due to the date of the tender, at the contract price of $ 22.50 per month. This tender appears to have covered only the rent, and not the interest thereon, which was payable monthly in advance, and should be computed on that basis. The tender did not cover the cost of storage, which the former opinion held was a recoverable element of damage, and which the verdict placed at $ 25, but as this was unliquidated damage, no interest was due thereon until the damage for cost of storage had been ascertained and adjudicated.

The tender was refused for the reason that Mrs. Westbrook, the landlord, claimed double rent. The basis of that claim, as recited in the complaint, in the instant case, is the letter from Mrs. Coley to Mrs. Westbrook, dated June 30, 1943, reading as follows:

"Benton, Arkansas, June 30, 1943. Mrs. J. W. Westbrook, Benton, Arkansas. Dear Mrs. Westbrook: I hereby state that you have requested me to move several times so you could have possession of the house for your own use and that I have agreed to move as soon as I could get a reasonably suitable place to move, but have not been able to do, and for the purpose of avoiding any further notice or litigation, I hereby agree to move and vacate your house and property on or before September 1, 1943. Very truly yours, Mrs. Ray Coley." This letter was copied in full in the former opinion.

In the former case Mrs. Westbrook recovered judgment for possession of the property and damages for the wrongful detention thereof, in the sum of $ 50, which included one month's rent, and as has been said, that judgment was affirmed (206 Ark. 1111, supra). Mrs. Coley appealed from that judgment and gave a supersedeas bond, which enabled her to retain possession, which she kept until she vacated the property on April 21, 1944. The former opinion was delivered March 20, 1944.

When the demand for double rent was refused this suit was filed, and the surety on the supersedeas bond was made a party defendant, and at the trial from which is this appeal, a verdict was returned against Mrs. Coley and the surety for double rent, together with damages in the sum of $ 25 for storage charges. To this verdict the court added in its judgment interest on the rent, amounting to $ 13.22, and interest on the storage charge in the sum of $ 1.06, and judgment therefor was rendered against both Mrs. Coley and the surety, and this appeal is from that judgment.

This suit for double rent is predicated on § 8585, Pope's Digest, which reads as follows:

"If any...