Sparks v. Murray

• Decision Date: 12 July 1915
• Docket Number: 120
• Citation: 178 S.W. 909,120 Ark. 17
• Parties: SPARKS v. MURRAY
• Court: Arkansas Supreme Court

178 S.W. 909

SPARKS v. MURRAY

120 Ark. 17

No. 120

Supreme Court of Arkansas

July 12, 1915

Appeal from Jefferson Circuit Court; A. H. Rowell, Special Judge reversed.

STATEMENT BY THE COURT.

Appellee brought this suit to recover rent claimed to be due for certain premises in the city of Pine Bluff, Arkansas, for fifteen months, at $ 75 per month, under the terms of a written lease.

Appellant answered, admitting the execution of the lease; that the notes given for the rent had not been paid, but alleged that the roof of the building was out of repair and leaked and that the appellee agreed to repair and fix it and attempted to do so, but that it leaked and rained through and damaged his stock of goods to the amount of $ 2,500; that appellee was continually notified of the damage, agreed to remedy it and attempted upon several occasions to have the roof repaired and the leak stopped, and that because of his failure to do so, the building became untenantable and was abandoned by appellant and denied any liability for rent on that account.

It appears from the testimony that appellant went into the building with a stock of merchandise and musical instruments under the terms of the present lease, on the 1st day of October, 1910, agreeing to pay $ 75 per month therefor. That on the 29th day of December, 1910, he abandoned the premises claiming that the defective roof and appellee's negligent repair of it, made the building untenantable on account of water leaking in and damaging his stock. Appellant had been occupying the building for some months before with the consent of appellee as a subtenant of one Drummond.

The testimony tends to show that at the place in the roof where the back part of the building joined the other, the rain water ran through and ran down into the store, wetting and injuring the clothing and musical instruments and causing the clothing to mould and mildew and the musical instruments to swell and the seams to separate.

Appellee was notified of the defective condition of the roof and agreed to repair it and sent workmen upon several different occasions upon the roof to repair it who reported that the repairs had been made. The work was done in such a negligent way, however, as that the roof continued defective and to leak and cause the damage complained of.

There was no covenant in the lease requiring the landlord to make repairs.

The court instructed a verdict for appellee for the amount claimed and refused over appellant's objection his requested instruction numbered 1, as follows:

"If you find from the evidence that the leased premises consisted of a store room on the ground floor and that plaintiff lessor, upon the complaint and at the request of defendant lessee, volunteered and undertook to repair the roof over the leased premises, which was in a leaky condition, and that defendant relied on such promises and undertakings of plaintiff to make such repairs, but plaintiff made such repairs in an improper and unskilled manner, causing damage to defendant's stock of goods by rain water leaking through said roof upon said goods caused by the unworkmanlike and unskilled manner of repairing said roof as aforesaid, then you should find for the defendant upon his counter-claim herein in such sum, if any, as the evidence may show his goods and merchandise in the leased store room were damaged by reason of such rain water and the flooding of said premises thereby."

From the judgment on the verdict, this appeal is prosecuted.

Judgment reversed and cause remanded.

J. L. Shaw and Coleman & Gantt, for appellant.

Where the owner and lessor voluntarily or at the request of the tenant, undertakes to make repairs but fails to do so, or does the repairing in such an unskillful manner that damage results to the tenant therefrom, who has relied upon such promise or undertaking by the owner, then the owner is liable to the tenant for his loss, and upon a suit by the owner for rent, such tenant may set up by way of defense such resultant untenantableness of the premises as an eviction therefrom, and may set up the resultant damages to him as a counter-claim. 123 S.W. 543; 99 S.W. 428; 66 P. 627; 134 P. 436; Id. 438; 110 S.W. 564; 79 A. 885; 150 S.W. 77, 78, 79; 24 Cyc. 1116; 78 N.E. 96.

M. Danaher and Palmer Danaher, for appellee.

1. The appeal...