Johnson v. Inman

• Decision Date: 20 May 1918
• Docket Number: 383
• Citation: 203 S.W. 836,134 Ark. 345
• Parties: JOHNSON v. INMAN
• Court: Arkansas Supreme Court

203 S.W. 836

134 Ark. 345

JOHNSON v. INMAN

No. 383

Supreme Court of Arkansas

May 20, 1918

Appeal from Arkansas Circuit Court; Thos. C. Trimble, Judge reversed.

Judgment reversed and cause remanded.

C. E Condray and John W. Moncrief, for appellant.

1. The court erred in its instructions to the jury. It allowed appellee to recover for any prospective net profits appellee claimed. It assumed that the machinery was not in good repair when leased to appellee and that a failure to put the machinery in good repair was a breach of the contract. The court wholly ignored the defense of appellant that appellee had negligently managed and operated the machinery and thereby caused any loss occurring. The court tried the case on the wrong theory. 29 Cyc. 507, 510-11.

If the crop was injured through the failure of both appellant to repair and the improper care and negligent management by appellee of the machinery, then neither party was entitled to recover. 29 Cyc. 507-8, 510-11. The reason of contributory negligence applies here. As to joint or contributory wrongs of both parties, see 24 Pa.St. 469; 42 Id. 498; 28 Oh. St. 353. The court's own instruction is erroneous in failing to say: provided you do not further find that the crop was also damaged by reason of the improper care and negligent management of the machinery by the plaintiff. Plaintiff was allowed to recover under the instructions even though he was careless. 29 Cyc. 507-8, 510-11.

2. The measure of damages fixed by the trial court was erroneous following presumably 19 L. R. A. (N. S.) 938. The true rule is laid down in 96 Ark. 78. See also 2 S.E. 827-9, 831; 39 S.W. 433; 96 Ark. 84-5; 91 Id. 153; 2 S.E. 827; 57 Ark. 207.

3. Appellee sued and recovered for repairing machinery and that was all to which he was entitled. A tenant must first give notice to the landlord to make repairs and afford him a reasonable opportunity and time to make them. 99 Ark. 193-197.

4. It was error to exclude the testimony of Duckett, Ryan and Hall. 65 Ark. 106-112; 96 Id. 52, 57.

J. M. Brice and Botts & O'Daniel, for appellee.

1. There is no error in the court's instructions. They correctly embody the law. The question of contributory negligence has no place in this case. This was a case of breach of contract. The only issue, as explained by the court in its charge, was whether or not appellant was guilty of breach of contract and whether damages resulted. The rule is stated in 6 R. C. L., par. 391. See also 97 Am. St. 954.

2. There was no breach of contract by appellee and the court properly instructed the jury on this phase. The machinery was properly and carefully managed by appellee, but it was defective.

3. The rule as to the measure of damages was correctly stated by the court, that is they must be compensatory. 96 Ark. 78, 84; 91 Id. 153, 160; 82 Id. 453; 135 S.W. 725-7-8; 19 L. R. A. (N. S.) 938, 944.

4. There was no error in excluding testimony and the judgment is right and is sustained by the testimony.

OPINION

HUMPHREYS, J.

Appellee, a tenant of appellant, brought suit against him in the Arkansas Circuit Court to recover a balance of $ 85.11 on open account, and $ 3,109.40 as damages to the rice crop on account of an alleged breach of covenant by appellant to repair the machinery used in pumping water on the rice fields. Appellant denied the material allegations in the complaint; charged that the loss or damage to the rice crop on account of a shortage of water was due to the careless and negligent operation of the pumping plant by appellee, and claimed a judgment over against appellee on open account of $ 118.44.

The cause was submitted to the jury upon the pleadings, evidence and instructions of the court, and a verdict was rendered against appellant for $ 900 damages, and the accounts were offset one against the other. A judgment was rendered in accordance with the verdict, from which an appeal has been prosecuted to this court.

The clause in the rental contract constituting the basis of this suit is as follows:

"It is understood and agreed by both parties hereto that the party of the first part (appellant) is to make any necessary repairs to machinery, should any be needed, and to turn the machinery and improvements over to the party of the second part in good state of repairs; and that should party of the second part have some unavoidable break-down or mishap during the term of this lease the party of the first part hereby agrees to repair any such broken part or parts of the said machinery at its own expense."

There was evidence tending to show that the engine, boiler and other machinery were not in a good state of repair at the time they were turned over to appellee, and that during the term of the lease unavoidable "breakdowns" occurred, which were not repaired by appellant, and that this breach of covenant for repairs on his part resulted in damages to the rice crop.

There was also evidence tending to show that the machinery was in a good state of repair when turned over to appellee and that the damage resulting to the rice crop from a shortage of water was occasioned by the careless and negligent manner in which appellee operated the pumping machinery after it was turned over to him.

Appellee tried the case in the circuit court upon the theory that if appellant breached the covenant for repairs he could, in any event, recover as damages the difference between the net value of the rice he did raise and the net value of the rice he could have raised. The court so instructed the jury.

The element of doubt is inherent in future profits in almost any character of business, and, on that account, courts are slow to adopt the profit rule as a measure of damages on account of contractual breaches, and will never do so if...