Storm v. Montgomery

• Citation: 95 S.W. 149
• Parties: STORM et al. v. MONTGOMERY.
• Decision Date: 28 May 1906
• Court: Supreme Court of Arkansas

95 S.W. 149

STORM et al. v. MONTGOMERY.

Supreme Court of Arkansas.

May 28, 1906.

Appeal from Circuit Court, Lawrence County; Frederick D. Fulkerson, Judge.

Action by Mrs. Susan Montgomery against J. C. Storm and another. From a judgment for plaintiff, defendants appeal. Reversed, and action dismissed without prejudice.

This action was begun before a justice of the peace by the appellee filing the following complaint, omitting caption: "The plaintiff, Susan Montgomery, states that she is the owner of the following property, to wit: [Here the complaint describes certain real estate and continues:] Upon the above-described property several buildings were located. That the plaintiff leased said buildings and grounds to the defendants; a copy of said lease being herewith filed and asked to be made a part hereof. That defendants have abandoned said property and sold said buildings to Chas. Coffin, the garnishee herein, at and for the sum of $150. That said sale was wholly without authority. That said defendants are seeking to convert the sum above mentioned to their own use. That defendants have collected $100 on said sale. That by reason of said sale, the defendants are indebted to the plaintiff in the sum of $150. That it is a just claim. That she ought as she believe to recover the sum of $150. That the said J. C. & F. J. Storm are nonresidents of this state. Wherefore she prays that a warning order issue for the defendants; that a writ of garnishment issue for Chas. Coffin, the garnishee herein; that she have judgment for $150, for costs, and all other proper relief." No written answer was filed, either in the justice or circuit court; but it appears from the evidence that appellants admitted the sale of certain buildings on the land described in the complaint, but claimed the right to do so under their contract of lease with appellee. The lease under which appellants claimed the right to make the sale, after setting out the consideration and describing the land, contained the following recital: "In addition to the foregoing the terms of rental are as follows to wit: Whereas, the said J. C. Storm and F. J. Storm propose operating a factory on said premises for the manufacture of ax handles and similar products of wood, Now, if said factory shall be operated for a period of three years then this rental shall be valid for that period, but not longer, upon the payment to me of $1 per annum. But if the said J. C. & F. J. Storm shall remove the machinery, and building from said land, or shall abandon, or fail to operate the same before the expiration of said period, then this contract shall be terminated, and the right of possession shall revert to me or my heirs or assigns, and at the termination of said rental, said J. C. Storm and F. J. Storm shall have the right and privilege of removing from said land, such buildings and their contents, as they may at times have located thereon."

Other evidence, documentary and oral, was adduced; but it is unnecessary to set it out, as the right of appellee to maintain this action, if she can maintain it at all, must rest upon the terms of the written lease executed by her to appellants. The court instructed the jury as follows: "In this case the plaintiff Montgomery has sued the defendants, Storm Bros., for the value of certain buildings which were located on land belonging to pla...