Driver v. Edrington

• Decision Date: 21 January 1905
• Citation: 84 S.W. 783,74 Ark. 12
• Parties: DRIVER v. EDRINGTON
• Court: Arkansas Supreme Court

84 S.W. 783

74 Ark. 12

DRIVER v. EDRINGTON

Supreme Court of Arkansas

January 21, 1905

Appeal from Mississippi Circuit Court, FELIX G. TAYLOR, Judge.

Reversed.

STATEMENT BY THE COURT.

J. L Driver, being the owner of a storehouse in the town of Osceola, rented the same to the mercantile firm of John W Edrington & Co. during the year 1901, for a rental of $ 25 per month. During the summer of that year Driver learned that Edrington & Co. had purchased a lot, and were preparing to build a storehouse of their own, and, supposing that they would not want his store longer, he rented the store to another party for the year 1902, and during the fall of 1901 he gave Edrington & Co. written notice that they must turn over the storehouse to him on the first day of January, 1902. After receiving the notice one of the firm called on Driver and offered to rent his store for 1902, and agreed to pay six months in advance, but he declined on the ground that he had already rented the house to another party.

Afterwards as Edrington & Co. failed to vacate on January 1, 1902, he caused another notice to vacate to be served upon them, and then brought an action of unlawful detainer to recover possession of the demised premises, alleging that notwithstanding the notices served upon them to give possession, Edrington & Co. still "willfully, unlawfully and without right continued to hold and still hold and occupy said storehouse." Wherefore he asked that defendants be compelled to pay by way of damages double the amount of rent during the time they held over.

Edrington & Co. for answer denied that they had willfully, unlawfully and without right continued to hold over the premises in controversy after demand made therefor. Further answering, defendants say that, before the expiration of the year 1901, "they endeavored to rerent the said premises from plaintiff for the year 1902, but that plaintiff refused to continue their lease for another year, or for any further time after the 1st of January, 1902, because defendants were building in the New Town with a view of moving into said building when completed; that it was utterly impossible for defendants to obtain any other building in the town of Osceola into which to remove their stock of goods until they could complete their own building, in the erection of which they were greatly delayed by bad weather; and they were absolutely compelled to remain where they were until they could complete their own storehouse. Defendants admit that they were liable to the plaintiff for the actual rent value of the property from the 1st day of January, 1903, but deny that under the circumstances they should be held liable for double the rental value of the premises by way of punishment for an act which they have done, not from willfulness, but through necessity."

On the trial there was evidence tending to show that there were other storehouses in the town of Osceola that the defendants could have rented large enough to hold their stock of goods, but not large enough to carry on their business with so large a stock of goods as they had been carrying.

The presiding judge gave the following charge to the jury over the objection of the plaintiff, to the giving of which plaintiff duly excepted:

"1. The defendant does not deny that he is guilty of an unlawful detainer, and the only question left for your consideration is the question of rents. If the defendant held over willfully and without right after the 1st day of January, he would be liable for double rent; but if he could not vacate January 1 without great damage or inconvenience to his business, his detention of the house would not be willful holding over, and he would be liable for single rent only.

"2. It is not enough to relieve him from double rents to merely show that he could not find a place of business such as would satisfy him, or be as large and commodious as the building occupied by him.

"3. If defendant remained in the house after January 1, the presumption is that the holding over was willful and without right, and the burden is on him to show that it would be impracticable or greatly injurious to surrender the possession to the...