Stewart v. Fleming

• Decision Date: 07 November 1910
• Citation: 131 S.W. 955,96 Ark. 371
• Parties: STEWART v. FLEMING
• Court: Arkansas Supreme Court

131 S.W. 955

96 Ark. 371

STEWART v. FLEMING

Supreme Court of Arkansas

November 7, 1910

Appeal from Lafayette Circuit Court; Jacob M. Carter, Judge reversed in part.

Judgment reversed cause remanded for new trial.

Powell & Taylor, for appellant.

The court erred in refusing to transfer the cause to equity, in striking out paragraphs five and six of the answer, and that part of paragraphs seven and eight relating to the payment of levee taxes for the year 1906. Kirby's Digest, § 6098.

Henry Moore and Henry Moore, Jr., for appellee.

The court properly refused to transfer to equity, and properly struck out paragraphs five and six, and that part of seven and eight relating to payment of levee taxes. 31 Ark. 170; 30 Ark. 686; 26 Ark. 28; 19 Ark. 522; 11 Ark. 58; 27 Ark. 244; 84 Ark. 349, and cases cited.

OPINION

MCCULLOCH, C. J.

Plaintiff Fannie R. Fleming, owned certain farm lands in Lafayette County, and on October 25, 1904, she entered into a written contract with defendant, Alex Stewart, leasing said lands to him for a term of seven years, commencing on the 1st day of January, 1906, the substance of said written contract being as follows:

1. That said lessee, in consideration of said lease, obligates himself that he would, during the entire term of said lease, keep all taxes and legal assessments on or against said lands promptly paid as the same should come.

2. That he would, at his own expense, keep all the necessary fences, levees, buildings and other improvements upon said lands, and for the protection and convenience thereof and of the tenants who would occupy the same.

3. That, if said lessee deemed it necessary for the protection of said lands, he would, at his own expense, have a survey made and the boundaries thereof clearly marked and defined.

4. That, in addition to the above obligations on the part of said lessee, he would, during the continuance of said lease, pay to the lessor as an additional annual rent for said interest in said lands the sum of $ 1,000 on or by November 1, of each and every year during the term of said lease, with interest thereon after the maturity of said payments at the rate of 8 per cent. until paid.

The writing was executed in duplicate, a copy thereof being retained by each party. Subsequent to the date of said contract, the General Assembly of 1905 passed an act creating the Long Prairie Levee District, which embraced a portion of the lands in question, and special assessments were levied upon the lands for the construction and maintenance of the levee.

Plaintiff instituted this action in the circuit court of Lafayette County against defendant in April, 1909, to recover the amount of the rent for the year 1908, $ 1,000, which remained unpaid, and also to recover the sum of $ 292.68 for levee taxes for the year 1907, and $ 474.62 for levee taxes for the year 1908, which defendant had refused to pay.

Defendant filed his answer, in which he denied that he had ever agreed to pay the levee taxes on the land; that at the time he entered into the lease contract with plaintiff he was then cultivating the land under a former written contract with her, expiring December 31, 1905, under which he was paying rent in the sum of $ 800 per annum, and paying the taxes assessed against the land during the period of the lease, and at his own expense keeping the premises in repair, which contract, it is alleged, contained substantially the same conditions and stipulations as those agreed upon in the last contract; that the last contract was intended as a continuation of the former lease, except as to the additional two hundred dollars per annum to be paid as rent, but that the plaintiff's agent prepared and presented to defendant for execution the last contract and represented to him that it contained the same provisions and stipulations as the former contract, except as to the amount of rent; that the former contract did not contain the words, "any legal assessments on or against said lands;" that said agent of plaintiff is an experienced lawyer, whereas defendant is inexperienced in such matters, and that in signing the contract he relied upon the representations of such agent. He admitted that he had paid the levee assessments of 1906, but that the same was done by mistake, and he seeks to recover same back. The answer contained a prayer that the cause be transferred to the chancery court, etc.

The court, on motion of plaintiff, struck out the foregoing allegations and prayer, and to each ruling defendant excepted. This ruling of the court left defendant without any defense, but a trial was had before the court sitting as a jury upon the allegations of the complaint, and judgment was rendered in favor of plaintiff for the amount claimed. Defendant appeals. There is no controversy as to the amount of the rent for the year 1908, or that it has not been paid; so that part of the judgment, for $ 1,000 rent and interest, will be affirmed.

The answer alleged, in substance, that the defendant was induced to sign the contract by false representations of plaintiff's attorney and agent to the effect that the written contract contained the same terms as the former one except as to the amount of rent, which had been agreed upon, and that he relied upon said representations. This, we think, constituted a good defense to the suit for the recovery of the levee taxes, and the court erred in striking it from the answer. There was a very material difference between the two contracts with respect to the payment of taxes, in that the last contract--the one now sued on--in addition to the agreement on the part of defendant to keep all taxes on the land paid, added the words "and legal assessments." The difference was a material one for, under the language of the former contract specifying only "taxes," it could not have been within the contemplation of the parties that special...