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(252 S.W.)

property to the receiver, if the court is of opinion that the receivership should be continued.

GRANTHAM v. WALKER. (No. 33.) (Supreme Court of Arkansas. June 11, 1923.) 1. Appeal and error 1108-No reversal be. cause of waiver of forfeiture by appellee after rendition of judgment.

jury's findings as to defendant's breaches of covenants to keep the buildings, fences, ditches, etc., in good condition and complete repair and to properly cultivate and manage the farm.

Appeal from Circuit Court, Mississippi County; W. W. Bandy, Judge. ·

Action by J. W. Walker against J. D. Grantham. Judgment for plaintiff, and defendant appeals. Affirmed.

J. T. Coston, of Osceola, for appellant.
A. F. Barham, of Osceola, for appellee.

Neither Crawford & Moses' Dig. §§ 2168, 2169, authorizing dismissal of an appeal, if improperly granted or appellant's right to further prosecute it has ceased, nor any other statute or principle of law or practice, authorizes reversal because of matters occurring after judgment, such as waiver of a forfeiture constituting the basis of appellee's right of action. 2. Appeal and error 1064(4)—Instruction referring to attorney's arguments for broken covenants not prejudicial error, if there is ing, contained a clause providing, in sub

evidence of breach of each.

MCCULLOCH, C. J. Appellee owns a farm in Mississippi county, consisting of about 315 acres in cultivation, and he leased it to appellant for a term of five years, beginning with the year 1921, for an annual rental of $3,500, payable on November 15th of each year. The lease contract, which was in writ

stance, that the lessee should keep the build

In unlawful detainer, an instruction sub-ings, fences, ditches, gates, and all other immitting the question whether defendant had breached any of the covenants of his lease, but referring the jury to the attorneys' arguments for what the covenants were, instead of specifically calling its attention to each, is not prejudicial error, though not in good form, if there is evidence tending to show a breach of each

covenant.

3. Appeal and error

930(2)—Presumed that jury followed specific rather than general instruction.

In unlawful detainer, where the court specifically instructed the jury that it could not find for plaintiff because of defendant's failure to pay rent, conceded to have been paid before the action was brought, submission of such alleged ground of forfeiture by a general instruction submitting the question whether defendant had breached any of the covenants in his lease was not reversible error; the assumption be

ing that the jury obeyed the specific rather

than the general direction.

4. Landlord and tenant 75(3)-Lessor's testimony that he did not object to lessee's negro tenants cultivating land and would not remove them if he got possession held not admission of consent to subletting in violation of covenant.

provements "in good condition and complete repair" during the term; that he would "cultivate and manage the said farm and lands in a fair and proper manner according to the most improved course of husbandry"; that the lessee would not "assign or underlet the premises or any part thereof without the consent in writing of the lessor; that he would at the end of the term surrender the premises in good condition and repair; and that "on any breach of any of the covenants by the lessee herein contained, the lessor may re-enter upon the said premises and immediately thereupon the said term shall absolutely determine."

Appellee also sold to appellant all of the work-stock, and feed and farming implements on the place for an agreed price, payable at the end of the first year, and appel

lant executed a note for the price with a mortgage on the stuff sold to secure payment. Appellee instituted this action against appellant to recover possession after the first year of the lease on the ground that there had been a forfeiture on account of breaches by appellant of all the covenants contained in the lease contract. He also instituted a replevin suit against appellant to recover the mortgaged property for the purpose of foreclosing the mortgage, and also instituted an action for accrued rent. The actions were consolidated and tried together, and the trial resulted in a judgment in favor of appellee for the recovery of the leased premises. Judgments were also rendered in favor of appellee in the other cases, but no appeal 5. Landlord and tenant 285 (4)-Findings has been prosecuted from either of them, and as to lessee's breach of covenants to keep the questions relating thereto are thus elimiimprovements in repair and properly culti-nated from the controversy.

Lessor's testimony, in his unlawful detainer suit tried during the crop season, that he did not object to certain negroes cultivating the land and would not remove them if he got possession, held not an admission of consent to defendant's subletting of the land to them without his written consent as required by the lease; he having the right to retain them on the place after recovering possession without thereby waiving defendant's breach of cove

nant.

vate farm sustained.

Appellant filed an answer denying the al

In an action to recover possession of leased legations in the complaint with respect to premises, evidence held sufficient to sustain the the breaches of covenants. The case was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(Ark.

tried on the testimony of numerous witnesses, [guments, and I will not call your attention speincluding the testimony of each of the cifically to that, but will leave that to the lawparties. yers in their arguments."

and if the instruction is found to be abstract in any particular by submitting an issue about which there is no evidence, then it is prejudicial and calls for a reversal of the case; otherwise we do not think it can be treated as prejudicial.

[1] Since the record was lodged in this court by appellant, he has filed a motion hêre It is contended that this instruction was to reverse the judgment and dismiss the com- prejudicial in form, for it submitted all the plaint of appellee on the ground that, since alleged breaches by reference to the written the rendition of the judgment below and the contract and arguments of the attorneys rathprosecution of the appeal here, appellee haser than by the court calling the attention of accepted payment of the rent for the year the jury to them separately, and also that 1922 under the contract and executed a re- it is erroneous in submitting to the jury the ceipt therefor reciting that the payment of issues concerning breaches of covenants rent was made under the written contract. about which there is no evidence. It is contended that the acceptance of the It must be conceded that the instruction is rent under the contract operates as a waiver not in good form, but we do not discover that of the alleged forfeiture, and affidavits and there is, for that reason, any prejudicial ercounter affidavits were filed here on the ques-ror, if there is evidence tending to show a tion as to whether the payment was made as breach of each of the covenants. The effect rent or for the use and occupation of the of the instruction was to submit to the jury premises while held under the supersedeas all of the covenants embraced in the lease, bond during the pendency of this appeal. There is no statute which authorizes this court to consider, as grounds for reversal of a judgment, transactions between the parties claimed to constitute a waiver of the forfeiture which is the basis of the right of action upon which the judgment was rendered. There is a statute which provides that where an appeal has been improperly granted, or appellant's right of further prosecuting the same has ceased, the appellee may move for a dismissal of the appeal. Crawford & Moses' Digest, §§ 2168, 2169. The statute does not, however, provide that the judg-gave another instruction specifically telling ment may be reversed on account of any matters which occurred subsequent to its rendition. Nor are we aware of any principle of law or of practice which would authorize such procedure in an appellate court. In fact, it is clear that the exercise of such power would be original and not appellate. It would involve an inquiry which would be original in its nature and not supervisory. We are of the opinion, therefore, that there is no authority for us to consider the question whether or not there has been a waiver of the forfeiture which constituted the basis of appellee's right of action.

[3] It is conceded that the rent was finally paid for the year prior to the institution of this action (1921), and it is contended that as that was one of the grounds of forfeiture alleged in the original complaint, it was error to submit it along with the other grounds of forfeiture, The court, however,

the jury that it could not find in favor of appellee on account of appellant's failure to pay rent. In other words, the court by a specific instruction eliminated the question of the payment of the rent from the consideration by the jury, and we must assume that the jury obeyed the specific direction of the court rather than a general direction given with regard to the breaches of covenants.

[4] Again, it is contended that there is no evidence to support the issue concerning the forfeiture on account of subrenting parts of the premises without the written consent of the lessor. We think there was evidence

[2] It is next contended that the judgment sufficient to submit that issue to the jury. should be reversed on account of error in the It is unnecessary to relate the testimony in instructions to the jury. The particular er- detail, but it was not, as contended by counror assigned is the ruling of the court in giv-sel for appellant, admitted by appellee on the ing, on its own motion, instruction No. 5,

which reads as follows:

witness stand that he knew of the subrenting and consented thereto. The testimony tends to show that most of the land was subrented to negro tenants, and that appellee knew that the negroes were, arranging with appellant to cultivate parts of the land; but it is not shown beyond dispute that appellee knew that there was to be rent contracts or consented thereto. Counsel insist that appellee's admission on the witness stand to the effect

"Now the other suit is a suit in unlawful detainer, and that means, gentlemen, that the plaintiff contends that the defendant had breached the written lease contract, and that because of the breach he has forfeited his right to the possession of the leased premises, and the duty you are called upon to perform is to pass upon the fact as to whether or not, under the instructions I am going to give you, the that he did not object to the negroes cultidefendant has, in some substantial way, breach-vating the land and would not have moved ed any of the covenants contained in that writ- them from the place if he got possession conten lease. As to what the covenants were, stituted an admission of consent to the subattorneys will call your attention to in their ar- letting, but we do not so construe the testi

(252 S.W.)

mony of appellee. His testimony was given at the trial in May, 1922, which was during the crop season, and appellee had a right, if he got possession of the place, to retain the tenants on the place without subjecting himself to the charge of having waived the breach of the contract by appellant with respect to subrenting.

[5] There was testimony sufficient to sustain the findings of the jury upon the issues concerning other alleged breaches of the contract. The testimony of appellant himself and other witnesses tended to show that the lands were not properly cultivated and that a considerable portion thereof was permitted to lay out; that an average crop was not raised on the place by reason of improper cultivation; that appellant failed to clean out the ditches, and let them fill up and allowed sprouts to grow up; that a large crib on the place was blown over by a storm, and that appellant permitted the lumber to be carried away; that appellant tore down the picket fences and burned them, and allowed a tenant house to get out of repair; that he permitted the mules to eat away some of the posts which supported a large barn and that the barn fell down and was completely wrecked on that account. The testimony tends to show that this barn was worth about $1,000 and that it was wrecked on account of appellant's carelessness in failing to keep the mules from gnawing the supports. There is no error found in the record, and the judgment is therefore affirmed.

MILLER v. ABRAHAM. (No. 52.) (Supreme Court of Arkansas, June 18, 1923.)

1. Master and servant 42 (3)-Servant not bound to accept ́employment from discharging employer at lower salary.

A wrongfully discharged employee is not required, in order to keep down his recoverable losses, to accept an offer from the former employer to work for him at a lesser salary, but his duty to reduce damages is confined to seeking other employment.

2. Master and servant 41 (6)-Employer has burden of proving servant could have obtained employment.

Reduction of damages for wrongful discharge, by other employment, being matter of mitigation, defendant employer has the burden of proving plaintiff employee could have obtained other employment.

3. Master and servant 31-Wrongful discharge need not be express.

words or acts of his intention not to perform his part of the contract according to its terms, is sufficient to authorize the employee to treat the contract as repudiated.

Appeal from Circuit Court, Mississippi County; W. W. Bandy, Judge.

Action by A. Abraham against Ike Miller, Judgment for plaintiff, and defendant appeals. Affirmed.

This was an action by A. Abraham against Ike Miller to recover damages for a breach of a contract by which the defendant hired the plaintiff to work for him as salesman in his

store for the period of one year.

According to the testimony of A. Abraham, he began to work for 1кe Miller on July 1, 1920, and worked for him until the 1st day of January, 1921, in his store at Osceola, Ark. When he was employed Abraham lived at Helena, and Miller agreed to employ him and Miller also agreed to rent him a dwelling for one year at a salary at $275 per month, house for $30 per month. On November 25,

1920, Miller told Abraham that his business was dull and that he did not think that he ought to pay him more than $137.50 per month. He agreed to pay him that salary if he would stay on. Later on during the year the subject was again talked of between the parties, and Miller told Abraham not to come to work unless he would work for $137.50 per month. Abraham declined to work for Miller at that price, and a few days later gave up his keys to the store to another employee of Miller. Miller then demanded possession of his dwelling house, and notified Abraham to vacate it, which he did. Abraham made an effort to obtain work of a

suitable kind, but was unable to do so, except that he made $60 between the date of his discharge and the end of his term of employment.

According to the evidence adduced by the defendant, he did not actually discharge the plaintiff, but only suggested to him that on account of the depression in business he ought to be willing to have his salary cut in half. The defendant himself denied in positive terms that he discharged the plaintiff, and said that he only suggested to him that he ought to work for $137.50, as that amount was all that he could earn on account of the business depression. The defendant also stated that the plaintiff neglected his work and was not as good a salesman as he had been when he had employed him at a former work for him at $137.50 a month, and this period of time. He asked plaintiff to stay and

the plaintiff declined to do.

Wrongful discharge of a servant need not The jury returned a verdict for the plainbe by absolute refusal in words to perform the contract, but conduct of the employer evinc- tiff in the sum of $1,590, and, from the judging the fact that he will no longer be bound ment rendered, the defendant duly prosecutby the contract, or clear manifestation by ed an appeal to this court.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

A. F. Barham, of Osceola, for appellant.
S. L. Gladish, of Osceola, for appellee.

(Ark.

to work for a reduced salary. The jury migth have found from this declaration of the defendant an intention to be no longer HART, J. (after stating the facts as bound by the contract, and this court has above). [1] The main objection to the re- held that not only an absolute refusal in covery had is that the defendant offered to words to perform a contract, but also any receive the plaintiff back into his employ-clear manifestation by words or acts of an ment at $137.50 a month, and that the plain-intention not to carry out the contract will tiff ought to have accepted the offer and in authorize the other party to treat this as a this manner have kept down the payments. cancellation of the contract and to bring acWe cannot agree with the defendant in this tion for the breach thereof. Spencer Medicontention. According to the evidence of the cine Co. v. Hall, 78 Ark. 336, 93 S. W. 985. plaintiff the defendant only agreed to keep him in his employment if he would work for him at $137.50 in lieu of the $275 per month provided in the contract of employment.

ant and refused by the court were erroneThe instructions asked for by the defendous and need not be set out in full. It is only necessary to say that they carry with According to the testimony of the plain- them an obligation on the part of the plaintiff, this was a plain proposition to give up tiff to have remained with the defendant and the old contract to accept in lieu thereof a worked for him at $137.50 per month, if he new one less beneficial to the plaintiff. This could not get employment in a similar line is to say the new offer of the defendant to of business elsewhere. This qualification was the plaintiff was to continue in the same not correct for the reason stated above. The employment at a less price. If the plaintiff plaintiff was not obliged to remain in Oscehad agreed to this he would have virtually ola or in form to tender his services to the surrendered the old contract and have made defendant after they had been once definitely a new one. If he had agreed to a change rejected. According to the testimony of the or modification of the old contract, he would plaintiff, he made reasonable efforts to prohave been bound by its terms and could not cure similar employment elsewhere, but have recovered for a breach of the original | failed. contract of employment. After the defendant had virtually declined to give the plaintiff employment under the original contract, there was no further duty on the plaintiff's part to be in readiness to perform. If the testimony of the plaintiff is true, his only further duty was to use reasonable care in entering into other employment of the same kind and thus reduce the damages. The case was submitted to the jury on this theory. Van Winkle v. Satterfield, 58 Ark. 617, 25 S. W. 1113, 23 L. R. A. 853.

was in direct and irreconcilable conflict. The The testimony of the parties to the contract court submitted their respective theories to the jury under proper instructions, and the verdict in favor of the plaintiff is warranted by his testimony.

There is no prejudicial error in the record, and the judgment will be affirmed.

GRISMORE et al. v. UTLEY et al. (No. 51.)

(Supreme Court of Arkansas. June 18, 1923.)

[2] This case also decides that the burden of proof was on the defendant to show that the plaintiff might have obtained, similar employment. The reason is that the failure of the servant to obtain other employment. does not affect his right of action, but only goes in reduction of damages.

[3] It is also contended that the court erred in giving instruction No. 3, which is as follows:

"If you find from the proof that the conduct of the defendant evinced the fact that he would no longer be bound by the contract, or if there was a clear manifestation by words or acts of his intention not to perform his part of the contract according to its terms, such action or conditions were sufficient to authorize the plaintiff to treat the contract as repudiated."

There was no error in giving this instruction. According to the testimony of the plaintiff, the defendant told him that he would not keep him during the remainder of his term of service, unless he would agree

Vendor and purchaser 37(2)-False representation that land was not in drainage district avoided, contract although falsity ascertainable from records.

False representations that land purchased was not in a drainage district held to avoid contract, although the falsity of the representation examination of the county records. could have been learned by the purchaser by

2.

Vendor and purchaser 44-Purchaser has burden of proving false representations induced purchase.

his purchase was induced by false representaA purchaser has the burden of showing that tions.

37 (6)—Repre

3 Vendor and purchaser
sentation that land was not in drainage dis-
trict held material.

that land was not in a drainage district was
In sale of land for $8,000, representation
material, where it turned out that the land was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(262 S.W.)

in a drainage district, and that the assessment of benefits amounted to over $4,000, and it was estimated that it would take about one-half this to construct the drainage ditch.

on the first note given for the purchase price of the land when it fell due. He gave thein the extension of time, and never heard them charge that Brennan had made any false representations about the drainage ditch until

Appeal from Poinsett Chancery Court; some time in the fall of 1921, a short time Archer Wheatley, Chancellor.

Suit by Fred Grismore and others against V. T. Utley and others. From decree for defendants, plaintiffs appeal. Affirmed.

Appellants brought this suit in equity against appellees to foreclose a deed of trust

given for the purchase price of 160 acres of land in cross county, Ark. Appellees filed a cross-complaint asking for a rescission of the contract for the purchase of the land on the ground that it was procured by false representations, and also asked to recover a portion of the purchase price of the land which they had already paid.

G. T. Carey and V. T. Utley entered into a contract with W. L. Brennan, the woods superintendent of the Grismore-Hyman Company, to purchase from that company 160 acres of land for the sum of $8,000. Carey and Utley were witnesses for themselves. According to their testimony, they purchased the land described in the complaint for $8.000, paying $2,000 in cash on January 10, 1920, and giving their notes for the balance of the purchase price and deed of trust on the land in question to secure the payment thereof. The negotiations and the contract were made with W. L. Brennan. They asked Brennan whether or not the land was in a drainage district, and Brennan told them that it was not. They told Brennan that they owned a piece of land in another county which was in a drainage district, and that they "had their stomachs full of drainage districts." They said that they would not buy the land at all if it was in a drainage district. Brennan assured them that he had an abstract and had examined it and knew that the land was not in a drainage district. Carey had known Brennan for five or six years, and relied on his statements. They subsequently learned that the land was in a drainage district, and that the assessment of Detterments against it amounted to $4,800, and the estimated amount which would have to be paid for the construction of the ditch, and which was a charge against the land, amounted to $2,087.04.

W. L. Brennan was a witness for appellants. He admitted making the contract for them, but denied having told Dr. Utley and Mr. Carey that the land was not in a drainage district. On the other hand he told them that there had been a survey for a drainage ditch about a half of a mile west of the land, but that in his opinion the land was drained by a slough on each side of it, and that he could not see why it would be assessed for the construction of a drainage ditch. Fred Grismore testified that Dr. Utley and Mr. Carey both asked him for an extension of time 252 S.W.-2

He

before the present suit was brought. stated that the parties became dissatisfied with their purchase because the value of the land depreciated 50 per cent. after they had entered into the contract in question.

The cashier for the Grismore-Hyman Company also testified that he notified Dr. Utley and Mr. Carey that the first land note was due and they told him that they would take it up a little later on.

The chancellor found the issues in favor

of appellees and entered a decree canceling the contract for the sale of the land, and rendering judgment in favor of appellees against appellants for $2,380, the sum that they had already paid towards the purchase price of the land. The case is here on appeal. Appellants, pro se.

Gautney & Dudley, of Jonesboro, for appellees.

HART, J. (after stating the facts as above). The chancellor found that W. L. Brennan, the duly authorized agent of the GrismoreHyman Company, falsely represented to appellees that the land in question was not in a drainage district, and that this false representation was a material inducement to appellees in making the contract for the purchase of the land.

[1] It is first contended that appellees should be denied relief because they did not examine the records to see whether or not the land purchased by them was in a drainage district. It would be inequitable to say to one who in good faith has relied upon the express declaration of another that the land he owned was not in a drainage district that he might have learned its falsity by going to the county seat and examining the records. The obligation of ordinary good faith precludes the vendor from seeking shelter from such a claim. The vendor is in no position to assert that, because the record of drainage districts was open to inspection, the representations were immaterial. It is enough that the purchaser believed the statement that inquiry was necessary to discover the truth, and that he executed the contract on the strength of the representation.

As said in Gammill v. Johnson, 47 Ark. 335, 1 S. W. 610:

"When the representation is made of a fact that has nothing to do with opinion, and is peculiarly within the knowledge of the person making it, the one receiving it has the absolute right to rely upon its truthfulness, though the means of ascertaining its falsity were fully open to him. It does not lie in the mouth of declarant to say it was folly in the other party to believe him."

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