Vanhoozer v. Gattis

• Decision Date: 07 July 1919
• Docket Number: 82
• Citation: 214 S.W. 44,139 Ark. 390
• Parties: VANHOOZER v. GATTIS
• Court: Arkansas Supreme Court

214 S.W. 44

139 Ark. 390

VANHOOZER v. GATTIS

No. 82

Supreme Court of Arkansas

July 7, 1919

Appeal from Logan Circuit Court, Northern District; James Cochran Judge; reversed.

Judgment reversed and cause remanded.

T. A Pettigrew, for appellant.

1. The contract founded on the compromise of the lawsuit was valid and binding. 43 Ark. 377; 101 Id. 142; 88 Id. 363; 69 Id. 82. It was conclusive in the absence of fraud. 74 Ark. 270.

2. The court erred in permitting the appellee and Honea Crossno to testify about transactions and agreements between appellant and appellee and Honea Crossno and Crossno and Vanhoozer with regard to the barn that occurred five years before the written contract was made. No oral testimony should have been permitted except that the contract was made in compromise of a law suit pending in chancery. 102 Ark. 575; 83 Id 163; 79 Id. 256.

If the barn had any usable value at all it would be its rental value and if as situated it had no rental value the measure of damages for detention would be the interest on its value at the legal rate stated to be $ 350. 36 Ark. 260; 34 Id. 184; 39 Id. 387; 199 S.W. 103.

His first contention is untenable. 8 Words & Phrases (1st Series), p. 7042; 4 L. R. A. 284; 19 Id. 611; 6 Id. 249; 3 Id. 33.

He is mistaken in his second contention. 78 Ark. 202; 206 S.W. 663; 22 Cyc., p. 10, par. 4.

The third is also untenable. Appellee was entitled to recover the fair usable value of the property and interest was not the criterion. 24 Ark. 264; 34 Id. 184; 36 Id. 260. See also 98 Ark. 328.

3. The burden of proof was on appellee and it was error to refuse to so instruct the jury. 991 S.W. 915. It was error also to give No. 2. This case is widely different from 206 S.W. 661 and 90 Ark. 351 and 52 Id. 251. The dissenting opinion in 206 S.W. 661 is applicable here.

Sid White, for appellee.

Counsel for appellant relies for a reversal on three grounds: (1) The court erred in allowing appellee to introduce testimony of the exact circumstances under which the barn was erected, together with the intentions of the parties with reference to ownership and control.

That the court erred in charging the jury as a matter of law that if appellee built the barn with an express understanding that it should remain his personal property subject to removal at all times, then it remained. personal property and did not become a part of the realty and he could remove it, answering in damages, if any, by reason of the delay in removal.

3. That the award of damages is excessive.

OPINION

HUMPHREYS, J.

Appellee instituted suit in replevin in the Logan Circuit Court, Northern District, against appellant, for the possession of a barn, placed upon appellant's land while he occupied the premises under lease, which expired in the year 1915. Appellee alleged that the barn was built under permission to remove same after the expiration of the lease; that his right to remove the barn had not expired; that he was entitled to the immediate possession of the property, but appellant was wrongfully detaining same; that the barn was of the value of $ 350, and that by reason of the wrongful detention of same, he was damaged in the sum of $ 100.

Appellant answered, denying the material allegations of the complaint and affidavit in replevin, and pleaded, by way of further defense, a written contract between them, of date December 22, 1915, under the terms of which, it was alleged, appellee's right of removal of said barn expired before the institution of this suit.

The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, upon which a verdict was returned in favor of appellee for the barn, or its value, $ 350, and damages in the sum of $ 150. A judgment was rendered in accordance with the verdict, from which, under proper proceedings, an appeal has been prosecuted to this court.

In the year 1910, or 1911, appellee verbally leased a farm from appellant's agent, Honea Crossno, which lease expired in the year 1915. Crossno became interested as a partner in the lease the following fall. During the term of the lease, appellee and his partner built a barn upon the land. Appellee afterwards purchased his partner's interest in the lease and barn. In the fall of 1915, a dispute arose between appellee and appellant which resulted in the institution of a suit by appellee against appellant. The suit was compromised by the execution of a written rental contract, of date December 22, 1915, for the rental of the farm for the year 1916. Appellee bound himself by one of the provisions in the contract to pay appellant $ 775 for the use of the land for the year 1916, and the right to remove the barn from the premises within twelve months after the expiration of the lease, or by January 1, 1918. Over the objection of appellant, appellee was permitted to testify that the barn was built under contract that it should remain the personal property of himself and partner, with the right to remove it from the premises just as other personal property. An exception to the admissibility of this evidence was properly preserved. The evidence on the part of appellee also tended to show that in December, 1917, some five days before the time expired under the contract for moving the barn, appellant extended the time indefinitely to appellee for moving same. The evidence on the part of appellant tended to show that the barn was built upon the land without any understanding that it should remain the personal property of appellee and his partner, with the right to remove it from the premises at any time; also to show that appellant never extended the time to appellee for removal beyond January 1, 1917, the time specified in the contract. Under the view of this court as to the disposition of the case, we deem it unnecessary to set out the substance of the evidence responsive to the issues collateral to the main question involved on this appeal.

(1-3) The cause was sent to the jury on the theory that if the barn was ever personal property, it was always personal property and that appellee had a right to remove it even though he did not remove it by the time agreed upon in the written lease for the year 1916. This was error because the character of such an improvement, or fixture, may be determined by contract either express or implied. The rule is well settled in this State that such structures may be treated either as real estate or personal property, dependent upon the intention as to how they shall be regarded and treated by the parties interested. Markle v. Stackhouse, 65 Ark. 23, 44 S.W. 808; Bemis v. First National Bank, 63 Ark. 625, 40 S.W. 127; Field v. Morris, 95 Ark. 268, 129 S.W. 543; Bache, Receiver, v. Central Coal & Coke Co., 127 Ark. 397, 192 S.W. 225. Appellee suggests that the rule laid down is in conflict with the doctrine announced in the cases of Buffalo Zinc & Copper Co. v. Hale, 136 Ark. 10, 206 S.W. 661; Beauchamp v. Bertig, 90 Ark. 351, 119 S.W. 75, and Harmon v. Kline, 52 Ark. 251, 12 S.W. 496. We see nothing in them contravening this rule. On the contrary, each of the cases recognizes the doctrine that tenants must remove buildings placed by them upon leased premises within the time specified in their leases, else they immediately become a part of the real estate to which attached. The written contract between the parties in the instant case...