Ozark Grocer Co. v. Crandall

• Decision Date: 17 December 1917
• Docket Number: 41
• Parties: OZARK GROCER CO. v. CRANDALL
• Court: Arkansas Supreme Court

199 S.W. 551

131 Ark. 481

OZARK GROCER CO. v. CRANDALL

No. 41

Supreme Court of Arkansas

December 17, 1917

Appeal from Boone Circuit Court; Jno. I. Worthington, Judge modified and affirmed.

Judgment affirmed.

J Lloyd Shouse and J. Sam Rowland, for appellant.

1. The court erred in giving the fifth instruction for plaintiff. Courts should not invade the province of the jury by charging as to matters of fact. Const. Art. 7, § 23; 49 Ark. 439; 43 Id. 289; 45 Id. 165, 492; 53 Id. 381; 55 Id. 108; 58 Id. 109; 26 Oh. Ct. Ct. 59.

2. The court erred also in its instruction as to the measure of damages by flood-water.

3. The verdict is excessive. It should not, at least, be more than $ 1,133.33.

J. M Shinn and Troy Pace, for appellee; B. F. McMahon, O. W. Hudgins and Karl Greenhaw, of counsel.

1. It was not error to give instruction No. 5 for plaintiff. 80 N.Y. 312; 62 Id. 264; 88 Id. 650; 75 S.W. 330; 74 Id. 603; 23 Id. 393; 130 N.W. 924.

2. There is no error in the other instructions given nor refused. See 16 R. C. L., § 171-2-9, 184, 465; 24 Id., §§ 1130-1; 169 S.W. 229.

3. The general finding for plaintiff was a finding upon all the issues raised. 1 Ark. 465; 6 Id. 178; 15 Id. 403; 169 S.W. 229.

4. There is no merit in appellants' contention for a reduction of $ 33.33 1-3 per month on rent. The verdict is sustained by the evidence.

OPINION

MCCULLOCH, C. J.

Defendant, Ozark Grocer Company, was engaged in the wholesale grocery business at Fayetteville, Arkansas, with a branch house at Harrison, Arkansas, and on July 15, 1913, entered into a written contract with plaintiff H. A. Crandall for the rental of a storehouse in Harrison to be constructed by plaintiff on a lot which he then owned. The contract contained many provisions having no bearing on the present controversy. The feature of the contract which is the basis of the controversy reads as follows:

"The walls and floor of said basement to be properly water-proof and so maintained during the term of this lease to prevent dampness and water entering or accumulating therein."

Other provisions of the contract were to the effect that the house was to be constructed in workmanlike manner and there were several specifications recited in the contract for the method of constructing the house. Among other things, it was provided that the roof should be "of good material, water-proof, properly laid and maintained to be equipped with proper metal flashing to extend over the roof preventing leak along side walls and shall have sufficient guttering and down spouts to carry all water from the building." There is a conflict in the testimony as to whether or not the following clause appeared in the contract, as claimed by defendant:

"That in the event basement is not kept free of dampness, and water accumulates therein so as to prevent its being continuously used without damage to goods placed therein, then same may be vacated and the rental value of building reduced in proportion as its area bears to the area of floor space of entire building, main floor, and basement, and its use be held for the party of the first part."

The defendant introduced proof to show that the clause just quoted was attached to the contract on a separate slip referred to as "the yellow slip." Plaintiff denied that this clause became a part of the contract. The house was finished and defendant moved into it in December, 1913, but finally moved out before the expiration of the term of lease, and this is a suit to recover the unpaid rent.

At the time of the trial there was alleged to be due rent of $ 100 per month for 17 months, and the jury returned a verdict in favor of the plaintiff for $ 1,200. The defendant's contention was that the roof of the house and the basement were neither constructed in accordance with the specifications of the contract, and that on that account defendant was compelled to move out of the house, it being contended that the basement in particular was not water-proof and was not suitable for the housing of merchandise such as carried in stock by defendant. Defendant filed a counter-claim seeking damages in the sum of $ 6,348.15 on account of merchandise alleged to have been ruined by water and dampness which came into the building by reason of the alleged defects in construction. The testimony was conflicting upon every issue presented, but it is admitted that in the summer of 1915 there was an overflow from a nearby creek which came up above the lower line of the windows of the basement and that water got into the basement and damaged defendant's goods.

The assignments of error are very numerous, and we will not undertake to discuss them all, but will confine this opinion to a discussion of those assignments which are deemed material.

The first one of importance is that the court erred in giving the fifth instruction at plaintiff's request, which reads as follows:

"I charge you that the term 'water-proof' is a relative expression and that it is to be construed by you as meaning that the walls and floor of the basement were to be so constructed as to keep out water and dampness under such circumstances and weather conditions as might have been...