Northcross v. Miller
| Citation | 43 S.W.2d 734 |
| Decision Date | 26 October 1931 |
| Docket Number | No. 167.,167. |
| Parties | NORTHCROSS v. MILLER et al. |
| Court | Supreme Court of Arkansas |
Appeal from Circuit Court, Mississippi County; G. E. Keck, Judge.
Action by Wilson J. Northcross against Ike Miller and others, in which defendants filed a cross-complaint. From a judgment for defendants, plaintiff appeals.
Judgment for defendants on cross-complaint reversed, and complaint dismissed, and judgment in defendants' favor on plaintiff's complaint affirmed.
Appellant sued appellees in the common pleas court to recover $349.60, balance alleged to be due for the rent of a farm. Appellees defended the suit on the ground that there was a shortage in the acreage of the land rented. By way of cross-complaint, appellees sought to recover the sum of $349.60 from appellant on the ground that by mistake they had paid appellant too much rent for the land.
From an adverse judgment appellant appealed to the circuit court. There the case was tried upon facts which may be briefly stated as follows: On the 1st day of January, 1927, appellant leased by written contract for the term of one year to P. E. Rogers & Co., a partnership composed of P. E. Rogers, Ike Miller, and J. L. Williams, certain lands which are specifically described according to government survey, each of which had the number of acres set forth, ending with the following "containing in all 487 acres." The term of the lease commenced on the 1st day of January, 1927, and ended on the 31st day of December, 1927. The next clause provided that the rent should be in the sum of $7 per acre. On the 21st day of December, 1927, the same parties entered into a written lease for the same lands under the same description. This lease provided that the leased lands contained in all 487 acres, and that the rent should be in the sum of $8 per acre. The lease provided that the term should commence on the 1st day of January, 1928, and end on the 31st day of December, 1928. Miller and Williams paid the rent on the land for 1927 for the amount of 487 acres at $7 per acre. They gave a rent note for the 1928 rent for the rent of 487 acres at $8 per acre. Appellees refused to pay all the rent for the year 1928 on the ground that there was a shortage of 43.7 acres in the leased land. Appellant had a survey of the land made by a civil engineer in 1928. The description in both lease contracts describes 50 acres in the north half of the south half of section 24; and on the direct examination the civil engineer testified that 50 acres of land is absolutely contained in that description. On cross-examination, he stated that there was approximately 80 acres in that subdivision, and that it was practically all in cultivation. Appellees admitted that they paid all the rent for the year 1927, but claimed an overpayment by them because of a shortage of 43.7 acres. In 1928 they refused to pay for 43.7 acres which they claimed were not in cultivation on the leased premises. They had the premises surveyed, and the testimony of the surveyor showed a shortage of that amount.
According to the testimony of P. E. Rogers, he made the contract with appellant to lease his land for 1927 for his firm, which consisted of himself, Ike Miller, and J. L. Williams. The partnership was dissolved in March of 1927, and Rogers turned over the 50 acres of land in section 24 above referred to to a Mr. McAdams, who worked it. He and Mr. McAdams examined the tract of land, and estimated that it contained 50 acres. Rogers selected all the lands which his firm rented from appellant in 1927. When McAdams and Rogers agreed on the land in section 24 as containing 50 acres, McAdams was working for appellee Williams.
According to the testimony of Ike Miller, appellees overpaid the rent on about 40 acres or more of land in 1927. According to the testimony of J. L. Williams, appellees had leased the land from appellant during the years 1926, 1927, and 1928. A canal was dug through the land in the latter part of 1927 or the early part of 1928. The division line of the land described as 50 acres of cleared land in the north half of the south half of section 24 was a ditch and road. Appellees first leased these lands in 1926. Williams first stated that he had a survey of the leased lands made in October 1928, and that this showed a shortage of 43.7 acres. He believed that he had the number of acres of cleared land set out in the lease until 1928. Witness was asked if he believed that he had the full amount of cleared land leased up until 1928, and answered, "First in 1927, I made a good many trips down there and that is when I really made up my mind that we were really paying for more than we were getting." Continuing, he said that up to that time he had relied on the acreage as stated by appellant and paid him accordingly. In another part of his deposition he was asked the occasion of the appellees having the plat made, and stated that there were two reasons. One was that Miller and he had been on the leased land; that Williams told Miller that he did not believe that they had gotten all they were paying for. Then, after the canals were dug, they also wanted to see how much land the canals took up. Continuing, Williams said that the canals were dug in the latter part of 1927 or in the early part of 1928. Other facts will be stated or referred to in the opinion.
The jury found a verdict for appellees on appellant's complaint. The jury found for appellees against appellants on their cross-complaint in the sum of $240, with interest at 6 per cent. from November 15, 1927. The case is here on appeal.
Chas. E. Sullenger, of Osceola, for appellant.
G. B. Segraves, of Osceola, for appellees.
HART, C. J. (after stating the facts).
The general rule is that money paid under a mistake of fact may be recovered. Chicago, R. I. & P. Ry. Co. v. Lena Lumber Co., 99 Ark. 105, 137 S. W. 562. In Tancred v. First National Bank, 130 Ark. 520, 197 S. W. 1178, the rule is stated, where a person without mistake of fact, or fraud, duress, or coercion, pays money on a demand that is not enforceable against him, the payment is deemed voluntary and cannot be recovered. In Blackburn v. Texarkana Gas & Electric Co., 102 Ark. 152, 143 S. W. 588, it is said that, where one...
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