Delaney v. Jackson

• Decision Date: 16 May 1910
• Citation: 128 S.W. 859,95 Ark. 131
• Parties: DELANEY v. JACKSON
• Court: Arkansas Supreme Court

128 S.W. 859

95 Ark. 131

DELANEY v. JACKSON

Supreme Court of Arkansas

May 16, 1910

Appeal from Garland Circuit Court; W. H. Evans, Judge; reversed.

Reverse and remanded.

Wood & Henderson, for appellant.

Appellant was not required to keep the premises in repair, there being no covenants in the lease to that effect. 71 S.W. 903; 10 L R. A. 147; 55 Am. Dec. 45; 60 A. 886; 72 Ark. 405; 51 Ark 46; 63 Ark. 430.

Greaves & Martin, for appellee.

Objection must be made at the time improper evidence is given otherwise it is waived. The same is true with regard to instructions. 72 Ark. 371. An objection to the court's refusal to give several instructions collectively is not sufficient if any one of them is bad. 75 Ark. 181; 80 Ark. 528; Id. 587; 70 Ark. 482; 85 Ark. 130; 60 Ark. 256; 86 Ark. 103; 60 Ark. 250; 140 U.S. 234; 4 S. Dak. 88; 89 Hun 75; 52 Am. St. 94; 87 Ark. 614; 80 Ark. 528; 79 Ark. 338; 13 Pet. 302; 12 L. R. A. 554; 8 Id. 608; 69 Ark. 143. The oral evidence was admissible. 96 Tenn. 148; 34 L. R. A. 824; 73 Ark. 542; 22 Ark. 463; 87 Ark. 62; 47 Ark. 148; 21 Ark. 284; 38 Ark. 334; 17 L. R. A. 270. Where the verdict in a new trial must be the same, the case will not be reversed. 43 Ark. 296; 44 Ark. 556; 46 Ark. 542; 57 Ark. 242; 60 Ark. 508.

OPINION

BATTLE, J.

P. J. Delaney and J. B. Johnson entered into a written contract of lease, which is in part as follows: "This agreement, between P. J. Delaney and J. B. Johnson, as lessee, entered into at Hot Springs, Arkansas, this 15th day of September, 1908, witnesseth:

"That said lessor hereby leases and demises to said lessee the following described house and premises, namely, a certain two-story frame building house, known as the Marion Hotel, situated on Whittington Avenue and on lot 7, in block 132, of the city of Hot Springs, county of Garland and State of Arkansas, from the 15th day of September, 1908, to the 15th day of September, 1909, for the consideration of the monthly rent of one hundred ($ 100) dollars to be paid in advance on the first day of each and every month of said term, and for other valuable considerations hereinafter mentioned and described in the premises and covenants of said lessee hereinafter set forth.

"The said lessee hereby agrees and promises to pay to the lessor the sum of one hundred ($ 100) dollars on the first day of each and every month during the continuance hereof as rent for said premises. That is to say, said lessee is to pay one hundred ($ 100) dollars upon the execution and delivery of this lease and one hundred ($ 100) dollars on the 15th day of each succeeding month during the term of this lease; and, as security for the payment of said rent and the faithful performance of his covenants as lessee herein, he has agreed, and does hereby agree, to pay to said lessor, upon the execution of this lease, the sum of three hundred ($ 300) dollars in lawful money of the United States, which said sum is to be held by said lessor to secure him against all loss from the nonpayment of rent on the part of said lessee, and for all damage done, suffered or permitted by said lessee to the property herein leased during the term of this lease."

The contract was signed by both parties. It contained no stipulation or warranty that the roof of the house was in good repair, or that it would not leak, or to keep the same or house in repair.

Johnson instituted an action against Delaney on this contract, in the Garland Circuit Court, to recover the $ 300. He alleged in his complaint that he and defendant entered into the foregoing contract; that pursuant to the terms thereof he deposited with the defendant the $ 300 as security for the payment of rent; that the house at the time he rented it was untenantable; that its roof, in rainy weather, leaked to such an extent as to make the rooms of the house untenantable; that this defect was not known to him at the time he executed the lease; that defendant warranted the roof to be in good condition, and that it would be kept in good repair during the term of the lease; that plaintiff, on account of the condition of the roof, was compelled to surrender the house on the 15th day of January, 1909; that he demanded the return of the $ 300, and the defendant refused to pay it. He therefore asked for judgment for the $ 300 and interest.

Defendant answered and denied all the material allegations of the complaint.

In a trial before a jury plaintiff, Johnson, testified that he entered into the foregoing contract of lease with the defendant; that while he and defendant were looking at the house, before executing the contract, he asked the defendant if the house leaked, and he replied it had, but it did not then. He testified, over the objection of the defendant, that the defendant further replied that he would guaranty that the house did not leak, and that the roof was in good condition. He also testified that he deposited the $ 300 with the defendant, who still had it; that when the first rain fell after he took possession of the house he discovered that it leaked to such an extent as to be untenantable; that he notified defendant that it leaked and requested him to repair it, and he failed to do so; that he gave up the house on the 15th of January, 1909, on account of the leaking roof, and paid the rent up to that time but no more; that he demanded the $ 300, and the defendant refused to pay it, saying he would do so if plaintiff would comply with his contract.

Delaney, the defendant, testified that he told plaintiff, before renting the house to him, that it did not leak, and it did not at that time; that "it was in good shape at the time he took it; that he had no knowledge of any leaks until after plaintiff had given the house up." "That he never agreed to make any repairs or changes in the house at all; it was to be turned over to plaintiff just as it was. After plaintiff left he had the roof repaired and leaks closed for three dollars and fifty cents or four dollars."

Much other evidence, unnecessary to set out, was adduced by both parties.

The court at the request of plaintiff gave to the jury, over the objections of the defendant, three instructions, among which is the following:

3. "You are instructed that it is the duty of the landlord to keep the roof of a demised building in reasonably good condition to prevent leaking, and, if the roof became leaky, it is his duty to make the repairs within a reasonable time after notice thereof, failing in which the tenant may terminate the lease and recover any sum deposited by him as security for the rent."

And the defendant asked for six, and the court gave two and refused the other four. It is unnecessary to copy the other instructions given or those refused. It is sufficient to state the law by which the court should have been governed when acting upon them.

The jury returned a verdict in favor of the plaintiff for $ 300, for which the court rendered judgment in his favor. The defendant appealed.

Appellee says that appellant excepted en masse to the three instructions given by the court at his request, and that, if any one of the three should have been given, his objection should not have been sustained; and that he excepted in the same manner to the refusal of the instructions asked by himself, and that, if any one of them should have...