Leehy v. Fullerton
| Decision Date | 31 October 1921 |
| Docket Number | 206 |
| Parties | LEEHY v. FULLERTON |
| Court | Arkansas Supreme Court |
Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.
Judgment affirmed.
Brundidge & Neelly, for appellant.
Where the contract contains no provision for forfeiture of the lease, the tenancy cannot be terminated by breach of covenant by the lessee. 134 Ark. 21; 135 Ark. 536.
There being no provision for forfeiture, appellant's peremptory instruction should have been given. 100 Ark. 567.
Instruction No. 1 was erroneous in that it left out of consideration whether or not there was a proviso in the contract for forfeiture in the event the same was breached by defendant and the further fact of whether or not appellant was prevented from planting all the berries called for by the agreement, on account of weather conditions.
John E Miller and C. E. Yingling, for appellee.
This suit was not based on appellant's failure to comply with a written contract, but his failure to comply with an oral agreement. His was a tenancy at sufferance. 24 Cyc. p. 1401.
Appellant did not plead any special contract or circumstances to defeat appellee's right of possession, nor was he required to assume the burden of proof in this respect, and he should not now be heard to complain that the jury decided these issues against him. 36 Ark. 518.
Appellant repudiated the contract by refusing to plant the required amount of berries, and the appellee therefore had the right to rescind. 41 Ark. 532; 22 Ark. 258; 97 Ark. 541; 24 Cyc p 1417.
Appellant in failing to plant the required crop thereby refused to pay rent. This, with his refusal to quit possession, was ground for an action of unlawful detainer. 57 Ark. 301; 97 Ark. 541.
Appellant's peremptory instruction was properly refused.
Instruction No. 1 was properly given, it stating the law of the case as found in 36 Ark. 518 and 41 Ark. 532.
Appellee instituted suit against appellant in the White Circuit Court to recover the possession of forty acres of land, alleged to be unlawfully detained by appellant, on account of his failure and refusal to enter into a written lease in accordance with an oral agreement entered into between said parties.
Appellant filed an answer denying that he failed and refused to enter into a written lease for the land in accordance with the oral agreement, but alleged that on the contrary he had reduced the agreement to writing, and that it had not been executed because appellee refused to sign it; that, pursuant to the oral understanding, he had entered into possession of the premises and carried out all the terms of the lease until interrupted by a demand for possession of the premises and the institution of this suit by appellee.
The cause was submitted upon the pleadings, evidence and instructions of the court, which resulted in a finding and judgment in favor of appellee for the possession of the land.
It was agreed between the parties that a written lease should be executed to the effect that appellant should plant as much as he could of a certain block of six acres in strawberries in the spring of 1920, should cultivate four acres of strawberries already growing on the land, and should cultivate the balance of the land in corn; that appellee should receive one-fourth of the proceeds derived from the berries and one-third of the corn for the use of the land. Appellant took possession of the land and planted about an acre and a half of berries in the spring of 1920 and worked out the four acre tract, when appellee demanded possession of the lands and instituted this suit.
The evidence is conflicting as to whose duty it was to prepare the written lease. Appellant prepared a written lease and left it at the McRae State Bank for appellee to sign. The lease provided for the balance of the berries to be planted in the spring of 1921, and appellee refused to read or sign it because it provided that the strawberries should be planted in the spring of 1921 instead of 1920. The evidence is also in conflict as to whether appellee planted all the strawberries he could have planted in the spring of 1920 under the prevailing weather conditions.
When the evidence was concluded, appellant requested a peremptory instruction, on the ground that the right of eviction did not exist in favor of the lessor in the absence of a clause in the contract providing for a forfeiture upon failure to comply with the terms of the lease, and it is now insisted that the court committed reversible error in refusing to give appellant's peremptory...
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