Geary v. Parker , 65 Ark. 521 ( 1898 )

G. W. Williams, Special Judge.

On the 9th of November, 1889, the appellee, -Parker, leased lot No. 3 of block 58 of the city of Hot Springs to the appellant, John Geary, for a term of fifteen years, at an annual rental of $70, payable quarterly in advance, the appellant having the option at any time within the fifteen years of purchasing it for $1,100. An action of unlawful detainer was brought by the appellee, the complaint alleging that the appellant entered into possession and then so continued, but that he failed and refused to pay the rent which became due on the 9tb of November, 1890, to-wit: $17/50; that he refused to recognize appellee’s rights, and abandoned the contract; that on December 16, 1890, appellee made written demand on appellant for the possession of the lot, which he refused; that, by reason of the failure just named, the appellee was entitled to immediate possession.

The appellant interposed a general demurrer, which the court sustained, but, on appeal to this court by the present appellee, this ruling of the lower court was reversed on February 18, 1892. See Parker v. Geary, 57 Ark. 301.

The appellant, on March 25, 1891, before the case was remanded, filed an answer and motion to transfer to the equity docket, which motion was overruled on April 4, 1894. On May 12, 1893, the appellant filed an answer, denying that he failed and refused to pay the rent due on the 9th of November, 1890, or at any other time, or that he refused to recognize appellee’s rights, or had abandoned the contract. On the next day he filed what he termed an “amendment to the substituted answer to plaintiff’s complaint.” In this he denies that he was indebted to the appellee in the sum of $17.50, or any other sum, for rent, and that demand was made upon him for rent upon said date. He denied that he failed to pay rent, and that the appellee was entitled to possession at the date of the notice, or at the time of bringing suit. He also alleged that the appellee failed to put him in possession of all the property, having withheld a house occupied by appellee’s wife and mother; that the house had.a rental value of $4 per month; and that a greater sum was due him on account thereof than $17.50. The appellee filed a motion to strike this amended answer, on the ground that it was-filed after the trial began, and during cross-examination of the appellee; also that the alleged eviction of a part of the premises “should not at this stage of the trial be presented as an issue in the case.”

It is contended by tbe appellee that no exceptions were reserved specifically to the instructions given by the court. In the bill of exceptions they were reserved as follows: “To which ruling of the court in giving each and every one of said instructions so numbered first, second, fourth and fifth defendant at the time excepted.” In the motion for the new trial, as follows: “Because the court erred in giving to the jury, over the objection of the defendant, instructions numbered one, two, four and five, as asked for the plaintiff.” The cases in our reports cited by counsel in support of their contention are those in which the exceptions were reserved at the time in the bill of exceptions to the instructions en masse, followed in the motion for new trial-in the same manner, or, having been properly reserved in the bill of exceptions, were abandoned by failure to make them a ground of the motion for a new trial. There seem to be none to the effect that, where specifically reserved in the bill of exceptions, a failure to as specifically note them in the motion for a new trial will be an abandonment, if they are referred to in a general manner in the motion. The real reason for requiring specific exception is that the attention of the trial court may be called to the particular error complained of. The exception here is to “each and every one.” The word “every,” as defined in Anderson’s Dictionary-of the Law, is: “Each one of all; includes all the separate individuals which constitute the whole, regarded one by one.” The law does not require that an objection to an instruction shall be more specific than this. An exception to an instruction need not state the point of exception. McCreery v. Everding, 44 Cal. 246; Shea v. Potrero, etc. R. Co., 44 Cal. 414. Specification of the instruction, so as to designate it, is sufficient. Rogers v. Mahoney, 62 Cal. 611. The attention of the trial judge having been directed to each instruction separately by the original exceptions, the motion for the new trial should be taken in connection therewith. The reason of the rule will thus be followed. The instructions stand in separate paragraphs, and each enunciates some rule or rules of law. In the language of the court in Davenport etc. Co. v. City, 13 Iowa, 237: “If anyone was improperly refused, therefore, there .was a ruling upon the law or proposition as there stated; and as that particular proposition was called to the attention of the court, and insisted upon by the party asking it as the law governing the case, there is no chance for surprise, nor any fair ground for claiming that the mind of the judge was not called to what it was that counsel would not have him hold.” In the case of Atkins v. Swope, 38 Ark. 528, 539, looking at the language of the court, it appears that the objection first made was general, and the motion was no better. The court say: “The first ground of the motion for the new trial is that the court erred in giving the first, second, etc., instructions asked by defendants. The objection made to giving these instructions was general, embracing all of them in gross.” The objections were sufficiently specific.

Some of the instructions given, to which exceptions were reserved, told the jury that if they found that any sum of money was due at the time of bringing the suit, they must find for the appellant. In determining the soundness or unsoundness of such instructions, we are called upon to consider and construe section 3348 of Mans! Dig., the statute in existence when the suit was brought. It is as follows: “When any person * * * shall lawfully and peaceably obtain possession [of lands and tenements], but * * * shall fail or refuse to pay rent therefor when due, and after demand made in writing for the delivery of possession thereof, * * * such person shall be guilty of unlawful detainer.”

•The appellee contends that, under the statute, if the appellant failed to pay upon the day rent fell due, and he was notified in writing to vacate, the right of enforcement of the suit for unlawful detainer became inviolate, and that no tender, made after notice and prior to suit, could avail to defeat the right. There was no condition of forfeiture in the lease for non-payment. The decision of this court when the case was here before is cited as upholding this construction. The complaint there was good upon its face, but the answer and evidence present defenses which did not then appear.

It was shown by the evidence that the parties to the contract acted harmoniously for one year. When the appellant took possession, he assumed to pay an unpaid balance of a mortgage on the land and also the taxes, which should be deducted from his rents. These he paid, but just wbat amount on the mortgage is not clearly shown. He paid $10 taxes on April 10, 1890. The appellant produced receipts as follows: $49.90, November 18, 1889; $16.00, May 19, 1890; 50 cents, June 12, 1890; 50 cents, July 4, 1890; 50 cents, August 4, 1890; $2.60 October 2, 1890. These aggregate $70, the sum due for rent one year. The appellant claimed that the sum paid for taxes did not enter into any of the receipts, and that he was due an additional credit on this account.

The appellee says he did not know who paid his taxes for that year, but knows that the appellant had credit for it in his receipts.

The appellee went to the house of appellant on November 10, 1890, and demanded rent for one year in advance, but subsequently modified his demands to rent for one quarter in advance. The appellant told him that he would meet him up town in a few days, and settle, but, failing to do so, he called again, and received substantially the same answer, and he called the third time, and asked for a copy of the lease, as he desired some lawyer to look at it, and the appellant promised to come up town in a few days, and go to his lawyer, and have the lease explained. This is the version of the appellee. The appellant says that when the 9th of November arrived he had not received credit for the taxes he had paid; that the appellant came and wanted to get the lease, claiming that there was a mortgage in there that ought not to be on it, and that he made no demand for rent at that time, and appellant sent him away, with the understanding that when he came up to town they would go before the lawyer who drew up the lease, and have him explain the points in dispute. On the 16th of December, 1890, the appellant was served with a notice to vacate the premises, and on the 19th of the same month this suit was instituted. Between the service of the notice and the beginning of the suit the appellant, who was sick, sent his wife with $17.50 to the appellee and tendered it to him, and they went over to the office of appellee’s lawyers, under whose advice he refused to accept it.

It is apparent, from the conduct of the parties, that the amounts and dates of payment had no reference to the dates stipulated in the lease throughout the entire year. Notwithstanding this, the appellee claims the right to enforce the eon-tract to the strict letter of the beginning of the second year, •without any prior warning to the appellant of his intention to do so, except the notice to vacate, the serving of which, it is claimed, fox*feits the x-ights of the appellant beyond all retrieve, though, he is willing to pay and offers to pay all that is demanded of him within less than three days after service axid before suit has been instituted. This is claimed because the statute mentions no period of warning to be given. We think the decision in Little Rock Granite Co. v. Shall, 59 Ark. 409, is in point, and the appellee could not, under the circumstances, ask for a stxict enforcement of the contract unless there is something in the statute which would give him this right. We also think that the ixxstructions asking the jury to find for the appellee if any sum was due from the appellant disregarded the claim of the appellant that he thought a settlement was xxecessary between them at the beginning of the second year, and that he was entitled to a credit in addition for taxes. . If he was really of that opinion, axxd was actuated in delaying payment xmtil they could come together, this would excuse a prompt payment, of itself, unless the statute prevents it. The juiy could have passed upon this, but the instructions px’evented. They could have said whether his claim was made in good faith, or was a mere subterfuge.

But the appellee contends that any such defenses were eliminated by the tender, which admitted that the money was due. A tender does admit that the sum texidered would be paid, and he would be compelled to pay it, but the admission reaches no further. It does not necessarily admit the existence of the grounds upon which plaintiff bases his right of recovery. That is to be determined by the pleadings. Griffin v. Harriman, 74 Iowa, 436. Here the appellant claims that he tendered the money simply because it was claimed, and he was sick in bed, and could not attend to business, and in his pleadings denied that he really owed it.

While the statute names no period of time to elapse after the service of notice to vacate, to be allowed the tenant, yet the question remains, whether it was intended that the notice was to serve as an actual and immediate forfeiture of the lease the instant it was served, or whether it was given in order to give him a reasonable time in which to pay or to vacate, and as a notification that the forfeiture would be claimed. “Whenever the intention of the makers of a statute can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction seem contrary to the letter of the statute.” Bac. Abridg. tit. Statutes (I); People v. Utica Ins. Co., 15 Johns. 380; Reniger v. Fogossa, Plowd. 18; Partridge v. Straunge, id. 88; 2 Inst. 64; King v. Younger, 5 T. R. 449; Margate Pier v. Hannam, 3 B. & Ald. 266; Edwards v. Dick, 4 id. 212. In Jackson v. Collins, 3 Cow. 89, 95, a statute prohibited sheriffs or their deputies, in whose hands executions were placed, from bidding in lands at such sales. A deputy, who was the owner of the judgment, bought in the land at the sale through the officer acting at the sale as his trustee. It was held that the sale was good, although the statute made no exception in such cases.

In Lieber’s Hermeneutics, 103, it is said: “There are considerations which ought to induce us to abandon interpretation, or, in other words, to sacrifice the direct meaning of a text to considerations still weightier; especially not to slaughter justice, the sovereign object of laws, for the law itself, the means of obtaining it.” Then, as illustrating the idea of the consequences of seeing only the letter of the law, the following case is given: When Lord Bentinek was Governor General of India, he abolished flogging in the native army, not having authority to do the same in the British army in the east. If a sepoy professes the Christian religion, he thereby becomes subject to the British military laws proper, evidently to raise him. A Christian sepoy deserted from his regiment, returned shortly after-wards, was tried by a court-martial, and sentenced to be corporeally punished. The commanding officer thought himself prohibited from confirming the sentence by Lord Bentinck’s order abolishing corporeal punishment in the native army. He referred the subject, however, for the opinion of the judge advocate general, who gave it as his opinion that the sentence was correct, and might be carried into effect, as the general order does not extend to Christian drummers or musicians (to which prescribed trade the unfortunate individual happened to belong) and only affects native soldiers, not professing the Christian religion. The judgment, according to the letter of the law, was right, but it led to the monstrosity that the profession of the Christian religion should entitle the sepoy to three hundred iashes when the object in making him subject to the English laws was intended to be a benefit to him.

If the object of the legislature was to declare that all rights under the contract were forfeited by non-payment, it seems reasonable to suppose that they would have given the lessor the right to immediate eviction. What object the service of notice to quit could have, if he had this right, it is hard to perceive. To hold that the mere service of the notice gave this right is to attribute more potency to the serving of a paper than „to the failure of payment. The notice could not have been to appraise the lessee that rent was due, because he was bound to know this from his contract. The remedy is not made a summary one. Crow v. Morris, 15 Ga. 303. The conclusion is irresistible that, in requiring a notice, it must have been to serve some purpose, and this purpose must have been to give the tenant time to fulfill his contract before suit would be brought. The legislature left the length of time to the determination of the jury, but, since that statute, have seen fit to take this away from the jury, and make the length of time arbitrary, just as they have done in the service of summons and other notices. The main object, to which all others were subsidiary, was to secure the prompt payment of rent. In Tuttle v. Bean, 13 Met. 275, where money was tendered on the day that notice was served, the court said: “As the niain object of the statute apparently is to secure and enforce the payment of rent, there is, perhaps, good ground to hold that if the full amount of rent is tendered at any time before proceedings are commenced, under the landlord and tenant act, it is a good bar to such complaint.”

Whether the reading of the first answer of the appellant in evidence was erroneous or not, we see no injury resulting the’e-from. The following authorities probably have a bearing upou it. Newman, Plead. & Prac. 540,551, 687; Bliss, Code Plead. § 342 et seq.-, Pomeroy, Action and Defenses, § 724; Fain v. Goodwin, 35 Ark. 109.

The evidence introduced concerning the occupancy of the house by the wife and mother of appellee was not improper, nor in conflict with the written contract. If the appellant acquiesced in their occupancy after the making of the contract, it was a matter between him and them, and the jury had the province of determining whether he did or not.

For the errors indicated this case is reversed and remanded for a new trial.

Bunn, C. J., concurs.