ROSE v. FITZGERALD. ment of the lease from Rose to Parker & Cates, in bar of the action. On March 26, 1896, Rose filed an amendment to his complaint, alleging that the assignment of the lease to Parker & Cates was merely to secure a loan of $500; that they had collected, monthly, for him $365; that after paying the rent to Fitzgerald and other charges upon the sums so collected, there was left in their hands more than enough to satisfy their claim; that they had gotten possession of the lands under the assignment of this lease; that they procured, or conspired to procure, the cancellation of it by Fitzgerald, and were liable for damages occasioned him by his eviction. Parker and the representatives of Cates, then deceased, were made parties. defendant. Fitzgerald answered, denying that Parker & Cates had received any payment upon the debt to them secured by assignment of the lease; denying the conspiracy; and alleging that it would be necessary to go into a complicated accounting in order to determine what had been collected by Parker & Cates, what had been expended, and what remained in their hands to apply on their debt against Rose. He therefore moved that the cause be transferred to equity. In 1896 the Circuit Court proceeded to try the case for unlawful detainer, but after hearing much of the evidence, withdrew it from the jury and ordered that Parker & Cates be made parties, which was done. On January 4, 1897, the Pulaski Circuit Court ordered both causes transferred to this court, but declined to order them to be consolidated. Counsel not objecting, this court, of its own motion, ordered that the two causes be consolidated as a matter of convenience in hearing and determining them. Trial before Ion. Wilson E. Hemingway, Special Chancellor.* *Chancellor Martin disqualified. ROSE v. FITZGERALD. Messrs. G. W. Murphy and T. J. Oliphint, for plaintiff. Messrs. Cockrill & Cockrill for defendant, Fitzgerald. Messrs. Cantrell & Loughborough, for intervenors, Parker & Cates. THE CHANCELLOR: Many matters shown by the record have not been stated, but enough has been stated to understand the questions which I think must control in determining the cause. Counsel upon either side freely acquiesced in the action of the circuit court in transferring these causes, and interpose no question of jurisdiction. I have not, therefore, deemed it necessary to inquire whether matters of strictly equitable cognizance appear in each case. They do appear in one, and as the two are consolidated and depend upon the same facts, I have determined to act as counsel have acted-ignore the question that might be raised-and determine the matters in controversy. The first issue to be determined is that presented by the action for unlawful detainer. Does the record show that Rose was in arrears for rent on the brick building when the suit was brought? Or did he owe for it anything more than was paid upon demand for the rent on remainder of the block? This question is answered when we determine what Rose was to pay for the brick building. If $45 per month, it was not included in the amount paid; if $30 per month, it was included. Fitzgerald says it was the former amount, Rose says it was the latter. One or the other is mistaken, and I am clearly of opinion that it is Fitzgerald. Rose went into possession of the house in February, 1892. From that time to January, 1893, monthly demands were made upon him for rent of the entire property, just as if the rent of this house ROSE. FITZGERALD. 1. Construction temporaneous construction. was $30, and nothing was ever said or done to of contracts-Con- indicate that it was more. Where two parties differ as to the terms of a contract, particularly after such a lapse of time, the best way to find out who is right is to see what they did under it, and thus ascertain their contemporaneous construction of it. It is unreasonable that no demand for rent really owing would have been made for ten months. There is no attempt to explain the failure to demand it; and, unexplained, the circumstance carries more weight to my mind than the recollection of witnesses after years have elapsed, particularly as neither one testifies with apparent clearness of recollection, and it is fairly inferable from the testimony that the matter was one of general understanding rather than of definite and clearly defined contract. Learned counsel for Fitzgerald relies, as supporting his contention, on the fact that rent was paid in January, 1893, for this house, in excess of what was due, if rented for only $30. But I do not think it entitled to great weight. The amount collected was $60, which was $15 more than was due if the rent had been $45 per month. It therefore could not have been demanded or paid on account of that fact. The only explanation of why it was demanded is that given by Henry Parker, who says it was because that was the amount of the monthly rental; the explanation of why it was paid is, that Mrs. Rose made the payment rather than be turned out of the house. Parker evidently did not understand the contract, and his demand for the rent sheds no light on the question; the reason given for its payment seems plausible and is not. contradicted; but, however that may be, it does not support the contention that the agreed rental was $45, since the 2. Same - Rea- amount paid was what would have been due sonableness. upon a rental of $60 per month. Another circumstance against Fitzgerald's position is, that $30 per month is about a reasonable rental, while $45 would be excessive. Since the evidence conflicts, it is proper to inquire ROSE v. FITZGERALD. which is the more reasonable, since that is the basis upon which the parties would most likely contract.1 It follows that Fitzgerald could not maintain his action for unlawful detainer, and that he is liable for the costs in that case and for the damage occasioned to Rose by reason of bringing it. But according to Rose's testimony and my finding, he agreed to pay for the house in which he lived, $30 per month. He testifies that that was its reasonable rental value, and there is not an iota of evidence that it was worth more to him. As he would have been compelled to pay, for the rent of it, all that it was worth, he was not damaged, except nominally, when it was taken from him, and he was released from his liability to pay rent. As the costs are adjudged against Fitzgerald, it is unnecessary to assess nominal damages for the wrong. Learned counsel for Rose say, that, after the frame building was surrendered by him in October, 1891, and the construction of the brick building was begun, he continued to pay Fitzgerald the full rental reserved by the lease, although he was entitled to a deduction of $30 per month until he got the use of the new structure in February, 1893. And upon this they argue that he is at least entitled to recover the amount of the excess thus paid. But the payment of the excess was nowhere alleged in the pleadings, and no relief was asked on account of it. This counsel concede, and, to obviate it, asked leave upon the argument to amend their pleadings so as to conform to the proof and sue for this excess. No reason is 3. Pleadings assigned for not amending the pleadings earlier. The facts were developed incidentally, when the evidence was being taken to show the amounts received and disbursed by Parker & Cates, and were material to that issue. But it was not material for Fitzgerald to show why he collected that amount, and the fact that it is unexplained does not warrant the inference that it could not have been explained, if the issues had made it material. So, if the Amendments. (1.) Greer v. Laws, 56 Ark., 37. ROSE v. FITZGERALD. pleadings were amended and showed a right of recovery, it would not be proper to determine the cause without giving him an opportunity to take evidence upon the new claim; and an amendment that would require the opening of the proof should not be allowed, unless it were plainly essential to the ends of justice, especially when the facts had been known to the party for a considerable time and he had failed to amend until the hearing. 4. Excessive covery. But if the pleading conformed to the proof, it would not justify an award of judgment in Rose's favor, for two reasons. In the first place, the excessive payments were payments-Re- made by him voluntarily, and there is no proof that they were induced by fraud, accident or mistake. Without such a showing, money voluntarily paid cannot be recovered. But in the next place, the payments were made in October, November, and December, 1891, and in January, 1892, and if suit were now brought to recover the excess, it would, so far as is shown, be barred by limitation. The fact that this suit was brought years ago limitation Would not suspend the operation of the statute, as against a demand not then included in it; but the statute would run until the amendment was made and a recovery sought on the particular demand. ment, being unavailing, should not be allowed. 5. Statute of Amendments. So the amend In the action of Rose v. Fitzgerald, for damages occasioned by being deprived of the benefits of the lease of the remainder of the block, I have found greater difficulty. The right to cancel it, if the premises were not kept in good repair, is plain. Were they so kept? There is no proof that Fitzgerald's action was in any way procured by Parker & Cates. They, as brokers, represented both parties, at a time when there was no clash in their interests, and when they could well serve both. When the clash came, they served a notice for Fitzgerald. There is no proof that his action was not taken upon his own judgment, without any advice from them; and the proof fails to |