Yancey v. Bruce

• Decision Date: 27 October 1913
• Citation: 160 S.W. 863,109 Ark. 569
• Parties: YANCEY v. BRUCE
• Court: Arkansas Supreme Court

160 S.W. 863

109 Ark. 569

YANCEY v. BRUCE

Supreme Court of Arkansas

October 27, 1913

Appeal from Independence Circuit Court; R. E. Jeffery, Judge reversed.

STATEMENT BY THE COURT.

This was a suit in replevin for timothy hay grown on land belonging to the Meadow Lake Farm Company, in Independence County, Arkansas. The plaintiff claimed that he owned the hay by virtue of a verbal lease for the year 1912. The plaintiff had subrented the land from one Cain, who had leased the land for five years.

Plaintiff testified "that he (Yancey) was to let me have it the remainder of the lease that I had from Mr. Cain, four years. That is what he (Yancey) said. That was in the latter part of 1910, or the first part of 1911. On the day of the Cain sale I had another talk with him. That was some time in February 1911. He (Yancey) repeated the same thing."

After Cain died, plaintiff went to Yancey, who had authority to rent the land, and explained to him that he had a verbal contract with Cain to lease the land for the period that Cain had same leased. This conversation occurred in the latter part of 1911. Plaintiff told Yancey what his contract was with Cain, and Yancey agreed to it. Plaintiff stated that Yancey told him, when he spoke to him about it, that he would see his partner, and would call plaintiff up over the phone and plaintiff, not hearing from him, took it for granted that they didn't want the land.

Yancey testified on behalf of the appellants that Bruce (appellee) had told him at the time of the Cain sale (in February, 1911) of his contract with Cain, and stated that he told Bruce that he could go ahead with the contract until they disposed of the place. "I told him at the time," says Yancey "that until I did make some disposition of it, it was all right for him to keep it."

There was further testimony on behalf of appellee to the effect that in May, 1912, he spent four days weeding the meadow, and making it nice and clean; that Yancey was across on the adjoining forty acres, while plaintiff was weeding the meadow, but did not come over to where plaintiff was. He supposed that Yancey saw him. He was less than a quarter of a mile away, and it was perfectly level. One could see plainly a half a mile or a mile. Plaintiff was not disturbed in his possession until July, 1912, when Yancey, as agent for the Meadow Lake Farm Company, took possession of the hay. The plaintiff paid the rent for the year 1911, paying the same in November. He had not paid any rent for the year 1912.

The court, in part, instructed the jury as follows:

"If you find from the evidence, by a preponderance of the testimony, that the plaintiff continued to exercise control and possession of the strip of land in question during the year 1912, and went upon it and cleaned it up and harvested it, and that the defendant, or either of the defendants, had knowledge of his exercising the control and possession of this land, then you would be authorized to find for the plaintiff."

And, further, "If you find for the plaintiff, you will say, 'We, the jury, find for the plaintiff for the market value of the hay at the time it was taken, whatever it was, whatever the proof shows it was.'"

The appellants made a general objection to the instruction, and saved their exceptions to the ruling of the court.

The record shows that Mr. Jones, attorney for the plaintiff, in his argument to the jury, stated, "Mr. Bruce testified that Mr. Yancey told him in November, 1911, that he could still go ahead with the contract," and when this statement was objected to by counsel for the defendant, and after the objection to same had been overruled by the court and appellants had saved exceptions to the ruling, Mr. Jones continued as follows: "I ask Mr. Bruce, now, in the presence of the jury, if that is not what he said," and Mr. Bruce, sitting by, in response to said statement, nodded his head affirmatively, to which the appellants objected, and, upon their objection being overruled, saved their exceptions.

Other objections were made to argument of counsel, which it is unnecessary to set out. The jury returned a verdict in favor of the appellee as follows: "We, the jury, find for the plaintiff in the sum of $ 320, the value of the hay." Judgment was entered in favor of the appellee against the appellants in the above sum, and the case is here on appeal.

Judgment reversed and cause remanded.

Samuel M. Casey, for appellants.

1. The court's charge to the jury is clearly erroneous. If it be conceded that there was a contract between appellee and Yancey, it was oral and necessarily terminated with the year 1911. Moreover, there was no consideration passing to Yancey for the contract so as to make it binding. Besides not being the law, there is no evidence upon which to base that part of the instruction which permits the jury to find for the plaintiff on finding that he "continued to exercise control over the land for the year 1912," etc., and that the defendants, or either of them, had knowledge thereof.

The landlord of a tenant holding over after termination of a lease may treat him as a trespasser. 10 Am. Rep. 609; 14 Am. Rep. 890, notes.

The instruction as to the form of the verdict was manifest error. The verdict and judgment should be in the alternative. Kirby's Dig., § 6868; 65 Ark. 448; 50 Ark. 300.

2. The closing argument of counsel for plaintiff was reprehensible and clearly prejudicial. 100 Ark. 107; 61 Ark. 130; 58 Ark. 353; 95 Ark. 233.

Jones & Campbell and John W. Newman, for appellee.

1. The court's instruction was right under the facts; but appellants, having tendered no instruction covering the points complained of now, and having raised no specific objections to the instruction as given, will not be heard to make specific complaint here for the first time.

2. Under the facts developed in evidence, there existed a tenancy from year to year, to terminate which notice was essential. Kirby's Dig., § 3664; Tiffany, Landlord and Tenant, § 241. But, even if appellee was only a...