Cook v. Cave

Decision Date31 March 1924
Docket Number271
Citation260 S.W. 49,163 Ark. 407
PartiesCOOK v. CAVE
CourtArkansas Supreme Court

Appeal from Union Chancery Court; J. Y. Stevens, Chancellor reversed.

STATEMENT OF FACTS.

This was an action of unlawful detainer by J. R. Cook against Mrs Belle Cave to recover the possession of two lots, together with a hotel building situated thereon, in the town of El Dorado, Arkansas. The defendant was given notice under the statute to deliver possession of the property to the plaintiff, and the bond required by statute was also executed. The complaint was filed on the 25th day of April 1922.

The defendant filed an answer in which she denied that the plaintiff was entitled to the possession of the property in question, and claimed the right of possession in herself under a lease executed to her by the grantor of the plaintiff. By consent of the parties the case was transferred to the chancery court. Upon application of the plaintiff, a receiver was appointed, who took charge of the hotel and operated it.

On the 12th day of December, 1922, the plaintiff filed an amendment to his complaint, asking for judgment for twelve months rent at the rate of $ 412.50 per month, and that a lien be declared upon the hotel building, furniture, fixtures, and equipment therein, for the amount of said rent. It appears from the record that on the 12th day of February, 1921, G. E Lindsay leased to Mrs. Belle Cave the lots in question for a term of two years, with a rental of $ 425 per month, payable in advance. It was also provided in the written contract that the lessee should erect a building on the premises, including a store. A clause of the lease also provided that the lessee should have the right of renewing the lease for a period of one year from the expiration of its term, upon the same terms and conditions as the original lease. Another clause provided that the building erected on the leased lots might be used for living and sleeping- rooms.

Another clause provided that, at the expiration of the lease, the lessee should have the privilege of moving from said leased lots all of the improvements placed thereon by her. The lessee erected a hotel on said leased lots, and, after furnishing it, operated the hotel herself. It had thirty-five sleeping rooms, and was known as the Elk Hotel. J. R. Cook purchased the lots on which the hotel was situated, from G E. Lindsay, on June 23, 1921, and received a deed thereto. He purchased the property subject to the lease executed by Lindsay to Mrs. Belle Cave, and knew that Lindsay had agreed to accept $ 412.50 as the monthly rental instead of $ 425, because Mrs. Belle Cave had to move one side of her building about twelve inches. Cook continued to collect $ 412.50 rent up to January 1, 1922, and Mrs. Belle Cave owed him for twelve months' rent at the time the case was tried in December, 1922. Mrs. Belle Cave refused to pay Cook the monthly rental of $ 412.50. She tendered him $ 312.50, claiming that she had made a new agreement with him whereby he had reduced the rent one hundred dollars per month.

Cook denied having made any agreement whatever to reduce the rent, and demanded the rent provided for in the lease from Lindsay to Mrs. Belle Cave. Upon her refusal to pay, he instituted this lawsuit.

Mrs. Belle Cave was the principal witness for herself. According to her testimony, on February 1, 1922, she made an oral agreement with J. R. Cook that he would reduce the rent one hundred dollars per month, in consideration of which she agreed to exercise the option given her in the lease and renew it for an additional year. In other words, the agreement was that the lease should be extended one year from the end of the term in the lease from Lindsey to Mrs. Belle Cave, and she should pay rent from the date of the new agreement at the rate of $ 312.50 per month, payable in advance. Mrs. Belle Cave tendered this sum to Cook, and he refused to accept it, denying that he had made any new agreement with her whereby the rent was to be reduced from the amount provided in the original lease. Other facts will be stated in the opinion.

The case was determined by the chancellor on the 18th day of December, 1922, in favor of the defendant, Mrs. Belle Cave, and a decree was entered in her favor adjudging that she recover $ 2,850, and that the possession of the leased property should be restored to her. To reverse that decree, the plaintiff has duly prosecuted an appeal to this court.

Decree reversed and cause remanded.

E. W. McGough, for appellant.

The appointment of a receiver was necessary to save the property from injury or threatened loss. R. C. L., vol. 23, p. 18. The burden was on appellee to show a contract covering the rent other than what was in the written contract. This she has failed to do. Parol testimony is inadmissible to vary, qualify or contradict a valid written contract. 85 Ark. 135.

Jordan Sellers, for appellee.

Appellant was not entitled to a forfeiture or to maintain the action in unlawful detainer, since the lease itself contained a provision that the remedy of the plaintiff should be by lien on the building and furnishings. See 59 Ark. 405; 97 Ark. 537; 100 Ark. 565. In cases where there is a bona fide dispute as to the amount of rent, and rent is not paid for that reason, there is no forfeiture of the lease that would entitle the lessor to maintain unlawful detainer. 65 Ark. 528; 31 Ark. 296. The appointment of the receiver was unauthorized in an unlawful detainer case. 49 Ark. 117. A proper notice to quit is jurisdictional, and must contain a proper description of the property sought to be recovered. 1 Ark. 480; C. & M. Dig., § 4838; 19 Cyc. 1143-4. The statutes must be strictly construed in unlawful detainer cases. 9 Ark. 441. There was no court order appointing a receiver, and the minutes of the judge's docket showing this appointment by consent are not sufficient. 49 Ind. 126; 120 Ala. 412; 2 Tex. Civ. App. 157; 26 Ark. 653; 10 Ark. 483; 9 Ark. 67; 4 C. J. 100. If such an order was made, it should have been entered nunc pro tunc. 43 Tex. 458. The court was justified in allowing the receiver's fee. 34 Cyc. 511-512, and note 18.

OPINION

HART, J., (after stating the facts).

It may be stated at the outset that the plaintiff brought an action of unlawful detainer against the defendant in the circuit court, and, by consent of the parties, the cause was transferred to the chancery court. Subsequently the plaintiff amended his complaint to recover judgment for the amount of rent due him under the written lease, and to ask that the amount recovered be declared a lien upon the hotel building, furniture and fixtures therein, as provided in the written lease. As a defense to the suit in this form, the defendant pleaded the terms of a new oral agreement which she alleges was entered into between herself and the plaintiff, in substitution of the written lease, which is the basis of the plaintiff's suit.

It is well settled in this State that parties to a written contract may, subsequent to its execution, modify it and substitute a valid oral agreement therefor. Ozark & Cherokee Central Ry. Co. v. Ferguson, 92 Ark. 254, 122 S.W. 624; Weaver v. Emerson-Brantingham Implement Co., 146 Ark. 379, 225 S.W. 624, and cases cited; and Dierks Special School Dist. v. Van Dyke, 152 Ark. 27, 237 S.W. 428.

It is the contention of the defendant that there was a verbal agreement between herself and Cook modifying the written lease and reducing the rent to $ 312.50 per month. The written lease provides for the payment of $ 425 per month, which, it is conceded by the lessor, was reduced to $ 412.50 per month. The written lease must control the rights of the parties, unless it was changed, subsequent to its execution, by a valid oral agreement. In order to show the change or substitution of a new lease for the old one, it was incumbent upon Mrs. Belle Cave to show that a subsequent valid verbal contract was entered into between herself and Cook, which was supported by a consideration. In this connection it may be stated that the exercise of her option to renew the lease for an additional year, as testified to by Mrs. Belle Cave, would be a good consideration for a reduction of the rent, provided the new contract was valid and binding in other respects. 1 Underhill on Landlord and Tenant, p. 554; Tiffany on Landlord and Tenant, vol. 1, p. 1055, and 16 R. C. L. p. 1162.

While the agreement on the part of Mrs. Belle Cave to exercise her option to renew the lease for an additional year was a good consideration for a reduction of the rent, still the new agreement, being a verbal one, was invalid under our statute of frauds. See subdivision 5, § 4862 of Crawford & Moses' Digest. In making this statement we are not unmindful of the cases of Higgins v. Gager, 65 Ark. 604, 47 S.W. 848, and Alexander-Amberg & Co. v. Hollis, 115 Ark. 589, 171 S.W. 915. In those cases a lease was made to commence at a period of time in the future and to run for one year from that date. The court held that the time between the making of the lease and its commencement in possession could not, under the statute, be taken as a part of the term granted by the lease. Hence the oral contract for the lease of the land for one year, to commence at a date subsequent to the making of the contract, was not within the statute of frauds.

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