Whittaker v. Holmes

• Citation: 263 S.W. 788
• Decision Date: 28 April 1924
• Docket Number: (No. 334.)
• Parties: WHITTAKER v. HOLMES et al.
• Court: Supreme Court of Arkansas

263 S.W. 788

WHITTAKER v. HOLMES et al.

(No. 334.)

Supreme Court of Arkansas.

April 28, 1924.

Dissenting Opinion July 14, 1924.

Appeal from Circuit Court, Independence County; Dene H. Coleman, Judge.

Action by Mrs. Ruby Whittaker against Clarence P. Holmes and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Ernest Neill, of Batesville, for appellant.

W. M. Thompson and McCaleb & McCaleb, all of Batesville, for appellees.

WOOD, J.

This action was instituted by the appellant against the appellee Clarence P. Holmes to recover a balance alleged to be due under a lease contract. The appellant set up in her complaint a certain lease contract entered into between the appellant and Clarence P. Holmes, and alleged that C. P. Holmes was due her on said contract the sum of $420 as unpaid rent; that the appellees J. A. Holmes and C. E. Yeatman were sureties of C. P. Holmes for the payment of this rent. She alleged that she had demanded payment of the balance due both of principal and his sureties, which they had refused to pay. The lease and bond were made exhibits to the complaint.

The appellees, in their answer, admitted the execution of the contract and bond sued on, and, by way of affirmative defense, they alleged that in April, 1922, C. P. Holmes was desirous of engaging in the retail grocery business in the city of Batesville, Ark., and made a contract with the appellant, under the terms of which it was agreed that if she should erect a store building of the dimensions set out in the lease upon certain lands therein described, that he would lease same for the period of two years from the 12th of May, 1921, which will be 30 days from the date of the contract, and that he would pay as a rental for said building the sum of $30 per month. They alleged that it was agreed that plaintiff would erect and maintain the building, and place Holmes in possession thereof within 30 days from the date of the contract; that the sole and only consideration for entering into said contract, on the part of Holmes, was the erection of said building by the plaintiff, and the right to said Holmes to occupy and use same as a storehouse; that on the ____ day of May, 1921, Holmes entered into possession of the store building which had been erected by plaintiff, pursuant to said contract, and continued to occupy the same until it was destroyed by fire in December, 1921; that the plaintiff soon thereafter collected the insurance upon the building, but failed to erect another building of like dimensions for the use of Holmes on the premises; that Holmes never at any time used or occupied any part of the real estate mentioned in the lease contract except that on which the building stood, and that the real estate outside of this building was without any value whatever to Holmes. The defendants, therefore, pleaded a failure of consideration. They further set up that, shortly after the destruction of the building, as alleged, the plaintiff, by her agents, took possession of the premises, and exercised control over the same, and neither C. P. Holmes nor either of the other defendants had been in possession, or had any control over said premises since the destruction of the building by fire; that C. P. Holmes had paid all the rent due the plaintiff up to that time. They therefore denied that they were indebted to the plaintiff in the sum of $420, or in any sum. The cause was, by consent, submitted to the court, sitting as a jury, and the court found the facts to be as follows:

First. That the plaintiff, Mrs. Ruby Whittaker, and the defendant Clarence P. Holmes, entered into a written contract of lease referred to in the evidence, and made Exhibit A to plaintiff's complaint, and that the defendants executed the written guaranty or bond for the payment of rents introduced in evidence, and made Exhibit B to plaintiff's complaint.

Second. That the defendant Holmes entered into the possession of the store building erected under the terms of said written contract, taking possession on May 16, 1921; that he and his subtenant, Kent, occupied said store building until December 16, 1921, and that at that time said building was destroyed by fire.

Third. That the defendant Holmes paid to the plaintiff the rent, in full, for the time the building was so occupied.

Fourth. That under the terms of said contract of lease the sole purpose of its execution, by the parties hereto, and the considerations therefor were the procuring of the erection of said building, and its use and occupancy by the defendant Holmes, and the payment of the rental therefor to the plaintiff Mrs. Whittaker, and that except for the erection of said building, and its use and occupancy as a grocery store, the defendant Holmes would not have made said contract.

The court declared the law to be that, "upon the destruction of said building by fire, the defendant had the right to terminate the contract on his part." The court thereupon entered judgment in favor of the defendants, from which is this appeal.

The facts as found by the court in the first, second, and third findings of fact are undisputed, and the only real issue in the case is whether or not the court erred in its fourth finding of fact, and the correctness of its finding depends upon the construction that should be given the contract when viewed in the light of the situation of the parties to it, as shown by the testimony adduced to sustain the respective contentions.

The lease contract is as follows:

"The said Mrs. Whittaker has this day leased unto said Holmes for and during the period of two years from the date hereinafter mentioned, one certain lot or parcel of ground situated in what is now known as Bates' addition to the city of Batesville, and being in a large unnumbered block lying adjacent to, and on the south side of, Harrison street, and just south of the intersection of Fourth street, said parcel of ground fronting 16 feet on Harrison street, and running back towards Bates street, a distance of about 100 feet, to the woven wire partition fence, and said parcel being on the west side of a driveway from said Harrison street. The terms and conditions of this lease are as follows, to wit: The said Mrs. Whittaker is to erect upon said leased parcel of ground a one-story box store building, 16 feet in width, and 30 feet in length, with a glass front, the walls to be canvassed and papered, and the ceiling painted, and to provide said building with one counter and one section of shelving 16 feet long, as per sketch furnished by the said Holmes; the building to have also a shed porch in front, and a brick flue, and to be provided with electric wiring, but not with plumbing or sewer connections; the work of constructing said building to be commenced within one week from the date hereof, and to be completed within thirty days thereafter, and as soon as practicable and the time of the commencement of this lease shall date from the date upon which said building is completed and ready for occupancy. The said Holmes, on his part, agrees and binds himself to pay, during the entire period of this lease, as rental for said building and premises the sum of $30 per month, due and payable monthly in advance, and further agrees to give security for the payment of such sums. Said Holmes further agrees and binds himself to take good care of said leased premises and property, and turn the same back to the said Mrs. Whittaker at the end of this lease without notice, unless such lease shall be renewed by mutual agreement of the parties."

The bond is as follows:

"Know all men by these presents, that we, Clarence P. Holmes, as principal, and J. A. Holmes and G. E. Yeatman, as sureties, are held and firmly bound unto Mrs. Whittaker in the sum of $720, for the just and faithful payment of which we bind ourselves, our heirs, executors, and assigns firmly by these presents. The conditions of the above obligation are as follows, viz.: Whereas the said Clarence P. Holmes has leased of and from the said Mrs....