Lesser- Goldman Cotton Company v. Fletcher

• Decision Date: 03 April 1922
• Docket Number: 272
• Citation: 239 S.W. 742,153 Ark. 17
• Parties: LESSER- GOLDMAN COTTON COMPANY v. FLETCHER
• Court: Arkansas Supreme Court

239 S.W. 742

153 Ark. 17

LESSER- GOLDMAN COTTON COMPANY v. FLETCHER

No. 272

Supreme Court of Arkansas

April 3, 1922

Appeal from Lonoke Circuit Court; George W. Clark, Judge; modified and affirmed.

Judgment affirmed in part and reversed in part.

Moore Smith, Moore & Trieber, for appellants.

1. The lease of the Fletcher-Goodrum lands was not terminated by cancellation. Where a lease authorizes the lessee to terminate the tenancy at a certain time, he cannot terminate it at some other time. 1 Tiffany, Landlord & Tenant, 86; 16 R. C. L. par. 628. A notice to quit, given by landlord or tenant, may be revoked or withdrawn before it has been acted on. Ann. Cas. 1912-D, p. 682, and authorities cited. Even if that lease is deemed to have been canceled, Fletcher and Goodrum are not entitled to double damages. The statute, C. & M. Digest, § 6557, is highly penal, and must be strictly construed. 20 Ill. 120; 3 Camp 453; 211 S.W. 908; 82 N. J Law, 645; 82 A. 892; 118 Ga. 906; 45 S.E. 794; 197 Ala. 625; 73 So. 328. The statute does not apply unless the holding over is wilful. A holding over which is not contumacious, but is under a reasonable mistake as to the tenant's rights is not wilful. 38 Ill.App. 128; 230 Ill. 454; 82 N.E. 833; 130 Ky. 789; 114 S.W. 284; 136 Ky. 39; 123 S.W. 326; 6 H. & N. 846; 191 N.Y. 306; 84 N.E. 75.

2. There was no liability on the part of the United States to the landowners for damages. Such being the case, an alleged oral agreement on the part of Lesser-Goldman Cotton Company for the benefit of the landowners, independent of its contract to assume the liability of the United States, assuming to pay their claims regardless of liability of the United States, is not enforceable by them for lack of consideration. 65 Ark. 27; 101 Id. 223; 110 Id. 578; 121 Id. 414; 128 Id. 149; 144 Id. 8. See also 6 R. C. L., Contracts, par. 270-277.

The alleged oral contract, before it was acted upon by either the landowners or the road district, was merged into the written contract between the United States and Lesser-Goldman Cotton Company, and that contract exclusively defines the rights of any of the parties to this suit to hold the latter for their damages. 2 Elliott on Contracts, § 1415; 33 R. I. 464, 82 A. 225; 56 Iowa 349; 9 N.W. 293; 172 Ill. 563; 50 N.E. 219; 95 N.Y. 423; 38 Ohio St. 543; 80 Ky. 409; 27 N.J.Eq. 650; 6 N.D. 438; 71 N.W. 125; 153 Ind. 393; 53 N.E. 769. At most, the landowners and road district cannot recover greater damages than they respectively agreed to accept at the sale, with interest.

W. P. Beard and Mehaffy, Donham & Mehaffy, for Fletcher and Goodrum.

1. Adopt briefs and arguments filed on behalf of appellees Williams and Williams & Pierson, and in addition urge that appellant cotton company by its answer not only admitted liability, but also that payment to these landowners was a part of the purchase price at the sale--constituted one of the terms thereof. 134 F. 241.

2. The lease on the Fletcher- Goodrum lands was terminated by cancellation. Notice was given, and Fletcher gave express consent to the termination. The notice required by a lease may be waived. 29 L. R. A. (N. S.) 177; 147 Ill.App. 18; 126 Ark. 38; 70 Id. 406; 120 Id. 268; 88 Id. 138; 32 A. 64; 24 Cyc. 1334- 1339.

3. Fletcher and Goodrum were entitled under the statute, C. & M. Dig., § 6557, to double damages. 74 Ark. 12.

J. H. Carmichael and Coleman, Robinson & House, for appellee W. A. Williams.

1. As to the appellee Williams, appellants raise only the question as to whether or not the instruction numbered 1 is a correct declaration of law, admitting that there was evidence on which to base the instruction, but contending that the facts do not make out a case of liability. This suit is not based on the leases, but on a special contract made between the three parties to the sale itself, whereby the appellant promised to pay Williams the $ 1,000 which he had agreed to take, and the facts bring the case squarely within the doctrine that "when a promise is made to one upon a sufficient consideration, for the benefit of another, the beneficiary may sue the promissor for a breach of his promise." 65 Ark. 27. That is the first prerequisite to appellee's right to recover in this case. The second existed also, viz: privity between the promisee and Williams, and the obligation on the part of the promisee toward him. Id. Williams was not a stranger to the contract. A consideration moved from him, and there was a duty or obligation on the part of the Government to him. He was an actual party to the contract itself. 93 U.S. 148; 93 Ark. 346; 46 Id. 132; 91 Id. 367; 31 Id. 155; 119 Id. 64.

2. In response to appellant's contention that the Government and appellant afterwards changed the terms of the contract in such way as to release appellant from liability to Williams, and that they had the right to change it at any time before acceptance by Williams: the evidence conclusively shows an acceptance by him. Moreover, an acceptance on his part will be presumed. 2 Elliott on Contracts, § 1414; Id. 1415; 8 P. 280; 50 Id. 597; 93 N.W. 440; 58 Mo. 586.

Coleman, Robinson & House, and Carmichael & Brooks, for cross-appellants, W. A. Williams and R. Pierson.

James B. Reed and Thos. C. Trimble, Jr., for Lonoke Chamber of Commerce.

Chas. A. Walls, for Road Improvement District No. 4.

WOOD, J. MCCULLOCH, C. J., dissenting.

OPINION

WOOD, J.

On August 1, 1917, George B. Fletcher and Ella Mae Goodrum (hereafter for convenience called Fletcher- Goodrum) executed an assignable lease to W. W. McCreary to 160 acres of land, and on the same day W. A. Williams executed a similar lease to McCreary to 720 acres of land, all in Lonoke County, Arkansas. The consideration for the Fletcher-Goodrum lease was an annual rental of $ 720, and of the Williams lease for the annual rental of $ 5,500, both payable in advance. The leases gave the lessee an option to purchase at sums named therein at any time during the period of the leases. The Fletcher-Goodrum lease ran until December 31, 1920, and the Williams lease until December 31, 1921. The lessee, or his assigns, were given the right of cancellation upon written notice to the lessors on or before October 1st in any year, the possession of the premises to be surrendered on or before the end of the year in which notice was given.

Among other provisions the leases contained the following: "In case of the removal or destruction of irrigation plant machinery, houses or fences, the lessee or its assigns shall replace such improvements in as good condition as the same were at the date of this lease contract, at the conclusion of the lease. * * * * The undersigned (landowner) further agrees * * * * to permit the removal of buildings and improvements which may be erected by the lessee or his assigns, at the expiration of the lease." * * * * "He (lessee) shall have the right to assign or sublease the same to the United States Government, its officers, agents, or attorneys."

On the 26th of October, 1917, McCrary executed the following assignments of the leases: "For and in consideration of the sum of $ 1 and other valuable considerations, I, W. W. McCrary, do hereby transfer, assign and sublease the foregoing contract with all rights thereto to Charles A. Walls, president of the Lonoke Chamber of Commerce, for the use and benefit of the United States Government."

The contract between the Chamber of Commerce, the lessor, and the lessee, the United States, contained among others the following provisions: "That said lessor agrees that the lessee, without expense, may demolish or destroy any and all buildings, and any crops now growing on said land, in so far as they interfere with the use of the site for aeronautical purposes." "That the said lessor shall close all roads on the property hereby leased, seeking such legal proceedings as may be necessary to effectuate the same." "The lessor agrees that, at the expiration of this lease and any renewal thereof, the lessee may within a reasonable time remove any and all buildings, structures and other improvements, or part of buildings, structures, or other improvements, placed or erected on said premises, during the term thereof, or any renewal thereof, all expenses connected with such removal to be borne by the lessee." "That it (United States) will commit no waste and will not suffer the same to be committed, and will not misuse or injure the said premises, except in so far as is consistent with the use of this tract for aeronautical purposes." "That the lessee reserves the right to quit, relinquish and give up the said premises at any time within the period for which this lease is made or may be renewed, by giving to the said lessor or agents thirty days' notice in writing."

The landowners for "valuable consideration" executed a writing ratifying and confirming the action of the chamber of commerce in the execution of the leases and option, and agreed on their part "to perform and carry out all of the terms of said lease."

On December 10, 1919, the United States sold its improvements on the leased lands at public auction. The officer conducting the sale for the government passed out to the bidders a printed announcement containing the conditions of the sale, which, among other things, provided: "* * * * the successful bidder to release the government from all claims of property damage from the owners of the land, and any or all claims for replacement of improvements which the United States is obligated to replace for the property owners, under provisions of lease by which this land is held. * * * * It is agreed and understood by the successful bidder that all improvements must be removed and releases as specified, in this announcement, for the United...