McElvaney v. Smith

• Decision Date: 29 July 1905
• Citation: 88 S.W. 981,76 Ark. 468
• Parties: MCELVANEY v. SMITH
• Court: Arkansas Supreme Court

88 S.W. 981

76 Ark. 468

MCELVANEY v. SMITH

Supreme Court of Arkansas

July 29, 1905

Appeal from Craighead Circuit Court, Jonesboro District, HANCE N HUTTON, Judge, on exchange of circuits.

Reversed.

STATEMENT BY THE COURT.

McElvaney was the owner of a farm in Craighead County which he rented to Smith for the year 1899. Smith continued to remain on the land after the expiration of his term, and was put out by an action of unlawful detainer. On the trial testimony for McElvaney tended to show that he only rented the farm to Smith for 1899; that during the latter part of that year he was endeavoring to sell the farm; but, as a sale was uncertain, he told Smith that if he failed to sell the place he would rent the place to him for another year. He further told Smith that he would furnish him wheat to plant part of the farm in wheat, and that, if the place was sold, he would pay Smith for his interest in the wheat, or make some other satisfactory arrangements about it. Smith planted the wheat and afterwards McElvaney sold the place, and notified Smith to leave, which he refused to do. He was put out by an officer under writ sued out in this action, but was permitted to retain his interest in the wheat crop, and afterwards sold it.

On his side Smith introduced evidence tending to show that he rented the farm for the year 1900, and then planted his wheat; that when McElvaney sold the place Smith offered to surrender possession, provided McElvaney should pay him $ 50, and allow him to retain his part of the wheat, which McElvaney refused to do.

The other facts sufficiently appear from the opinion.

There was a verdict in favor of the defendant, and damages assessed at $ 34, and judgment accordingly. Plaintiff appealed.

Judgment reversed and cause remanded.

Frierson & Frierson, for appellant.

The court erred in giving instructions Nos. 2 and 3, and in refusing that asked by appellant and numbered "A." 1 Suth. Dam. §§ 13, 15, 16, 45; 7 Cyc. 25. Also in giving No. 4. 9 Enc. Pl. & Pr. 63; Kirby's Dig. § 6137; 19 P. 281; 1 L. R. A. 242; 8 Minn. 536; 43 A. 434; 55 N.W. 603; 31 Ark. 357; 41 Ark. 17; 30 Ark. 362. Also in giving instruction No. 5. 103 Pa.St. 541, S. C. 44 A. 565. A new trial should have been granted for newly discovered evidence. Kirby's Dig. § 6219; 66 Ark. 612; 16 Ia 121; 69 N.W. 77.

Eugene Parrish, for appellee.

OPINION

RIDDICK, J.

This is an appeal from judgment against plaintiff in an action of unlawful detainer brought by him against the defendant.

On the trial the presiding judge instructed the jury, in substance, that, unless a written notice to vacate was given to defendant three days before the execution of the writ of possession evicting him from the premises, the eviction was unlawful, and that, unless such notice was proved, the finding must be for the defendant. The counsel for plaintiff duly excepted to this instruction, and now contend that the judge erred in giving it, for the reason that it was alleged in the complaint that notice was given, and there was no denial in the answer. But it does not appear that the attention of the trial judge was ever called to the fact that the answer did not raise the issue of whether there was notice or not. The testimony for the plaintiff tended to show that written notice to vacate was given, while the defendant testified to the contrary. No objection was made to this testimony, and the trial judge was no doubt led to believe that the parties regarded the question of notice as an issue in the case, and therefore gave an instruction in regard to it. Only a general objection was made to this instruction. It is too late now to put in the special objection that no such issue was raised, and the answer must be treated as amended so as to conform to the proof. Nicklace v. Dickerson, 65 Ark. 422, 46 S.W. 945.

The court also told the jury in his instruction that the plaintiff "claimed that the land was rented to Smith for the year 1900, but that the contract was conditional," and that if that was so he must show a compliance with the conditions. But the record shows that plaintiff did not claim to have rented the land to Smith for the year 1900. He positively denied that he had rented Smith the land for that year. He testified that he only agreed to rent it in the event that he did not sell it, which he was trying to do. As he did sell the land, the contingency on which, according to his testimony, he agreed to rent it, did not happen, and according to plaintiff's statement he did not rent it. This instruction of the court touched the pivotal point in the case; and, as it misrepresented the contention of the plaintiff on that point,...