Garrott v. Kendal

• Decision Date: 03 November 1947
• Docket Number: 4-8292
• Citation: 205 S.W.2d 192,212 Ark. 210
• Parties: Garrott v. Kendal
• Court: Arkansas Supreme Court

205 S.W.2d 192

212 Ark. 210

Garrott v. Kendal

No. 4-8292

Supreme Court of Arkansas

November 3, 1947

Appeal from Crittenden Circuit Court; W. N. Killough, Judge.

Modified and Affirmed.

Cecil B. Nance, for appellant.

Hale & Fogleman, for appellee.

OPINION

Robins J.

In her unlawful detainer suit against appellant, N. S. Garrott appellee, Mrs. Leona W. Kendal, was by a jury verdict awarded possession of the lands, $ 7,560 for rent and $ 2,027.80 for "special damages." The trial court reduced the amount allowed for rent to $ 7,000 and entered judgment in favor of William L. Johnson Company, Inc., (which had purchased the lands from appellee, Mrs. Kendal, after this suit was filed) against appellant and his surety for possession of the lands and in favor of appellee, Mrs Kendal, for $ 9,027.80 damages. From that judgment comes this appeal.

Appellant urges here no objection to that part of the judgment below whereby appellee recovered possession of the lands.

These two grounds of reversal or modification of the circuit court's judgment are urged here:

1. That the award of $ 7,000 for rental was excessive.

2. That the award of $ 2,027.80 for "special damages" was unwarranted and excessive.

I.

Appellant had rented the lands involved here, approximately 500 acres adjacent to West Memphis, from appellee and her deceased husband for a number of years up to and including 1945. For each of these years a written rental contract was executed.

In the fall of 1945, appellee, as she testified, refused to rent the lands longer to appellant and entered into a written contract by which she rented same to W. W. Smith for 1946. Appellant, however, claiming he had an oral rental agreement with appellee for 1946, refused to surrender the lands, and cultivated same during the crop year of 1946.

Appellee served "notice to quit" on appellant on January 4, 1946, and on January 17, 1946, instituted this proceeding.

In order to retain possession pending trial appellant executed the statutory bond.

The testimony as to the rental value of the lands was in sharp conflict; but there was testimony of a substantial nature from which the jury might have calculated the rental value of the property to be $ 7,000 or higher. Therefore, we may not disturb the verdict in this particular.

II.

After appellee was thwarted in her attempt to obtain the lands in January, 1946, by reason of appellant giving the bond to retain possession thereof, her new tenant, W. W. Smith, sued her for damage accruing to him by reason of her failure to deliver possession to him. In that suit Smith recovered a judgment against her for such damage amounting to $ 1,608 and $ 19.80 for costs. She was compelled to expend $ 200 for attorney's fee in defending Smith's action against her and $ 100 for traveling expenses to and from her home in Grand Rapids, Michigan, in attending to the litigation. She thereupon filed an amendment to her complaint, asking recovery of the amount required to pay the judgment in favor of Smith and of costs and traveling expenses amounting to $ 200 and attorney's fee of $ 200, incurred in that case.

The principal objection, as to this part of the verdict, is that item of $ 200 for attorney's fee was improper and should have been withdrawn from the jury.

In support of this contention appellant cites our holding in Oliphant v. Mansfield, 36 Ark. 191, that upon the dissolution of an attachment, attorney's fees in that suit, incurred by defendants, were not allowable to them as damages. There is no analogy in the situation presented by the Oliphant case and...