Rector v. Bernaschina

• Decision Date: 29 January 1898
• Parties: RECTOR v. BERNASCHINA.
• Court: Arkansas Supreme Court

44 S.W. 222

RECTOR v. BERNASCHINA.

Supreme Court of Arkansas.

January 29, 1898.

Appeal from circuit court, Saline county; Alexander M. Duffie, Judge.

Action by H. M. Rector against R. Bernas

china to recover $1,757. Judgment for plaintiff for $22.90, and he appeals. Reversed.

Wood & Henderson, for appellant. George G. Latta, for appellee.

BATTLE, J.

H. M. Rector instituted this action in the Garland circuit court against R. Bernaschina to recover $1,757 on a lease. The defendant denied that she was indebted to him, but alleged that he was indebted to her in a large sum, which she pleaded as a set-off. In a trial by jury the defendant recovered a verdict for $22.90. Judgment was rendered accordingly, and the plaintiff appealed.

We will set out so much of the lease, evidence, and instructions as is necessary to present the errors complained of by the appellant. The lease is in part as follows:

"The said Rector, the party of the first part, by these presents, leases to the said Bernaschina, the party of the second part, a certain frame building annexed to and adjoining what is now known as the `St. Nicholas Hotel,' situated on Central avenue, in Hot Springs, Arkansas, the said hotel being numbered `No. 204½'; the said frame building to be used as a restaurant by the said party of the second part, for the general public, on the lower floor, and on the second floor the dining room is to be kept up by the said Bernaschina as a dining room exclusively for the said St. Nicholas Hotel, which is accessible to the said hotel by an annex; the remainder of the upstairs to be used by the said party of the second part as club rooms or sleeping apartments for the use exclusively of the said lessee, her family or employés, about the premises, but in no case are the said rooms to be let or hired out as furnished rooms to strangers for any purpose except as wine rooms for the entertainment of her patrons in general, on stated occasions. * * *

"And, for the use and occupation of the said building, the said R. Bernaschina stipulates and agrees to pay to the said Rector, party of the first part, or to his legal representatives, for the terms herein stipulated, the sum of thirteen hundred dollars ($1,300) in equal monthly installments, such monthly installments to be paid in advance if demanded by the party of the first part.

"And, as additional consideration for the use of said building, the said Bernaschina agrees to furnish from her dining room, upstairs, board or meals, such as are served to the guests of the hotel, for three persons."

Under the agreement to furnish meals for three persons, appellant testified that he "boarded the following persons with" the appellee, to wit: "Mrs. Georgia Owens, 120 days; E. F. Williams and family, 225 days; Mrs. E. W. Rector, 108 days; H. M. Rector, 98 days; T. F. Lindsey, 8 days; Mrs. Matheny, 230 days; Mrs. Matheny, family board, 140 days."

Over the objections of appellant, appellee testified that the contract with appellant to board three persons was understood by him and her, "and it was their contract, that she was to board the housekeeper, the chambermaid, and porter of the St. Nicholas Hotel"; and she further testified that he is indebted to her for...