Person v. Williams , 125 Ark. 174 ( 1916 )

Kirby, J.

(after stating the facts). It is contended the court erred in the giving and refusing to give said instructions and the contention must be • sustained. In Rose v. Wynn, the court said:

“ The books agree that in the action by a lessee against a lessor for damages for refusal or failure to deliver possession of the demised premises, the general rule for the measure of damagés is the difference between the rent reserved and the value of the premises for the term.' If the value of the premises for the term is no greater than the rent which the tenant has agreed to pay, then the latter is not substantially injured and can in general recover'only nominal damages', though the landlord without jiist cause refused to give possession.” Rose v. Wynn, 42 Ark. 261.

“The damages plaintiff was entitled to recover was the difference between the price he agreed to pay and the rental value.” Andrews v. Minter, 75 Ark. 590.

This would not include probable profits of the lessee from the cultivation of the demised land. Thomas v. Croom, 102 Ark. 113. There was no testimony tending to show the price agreed to be paid as rent for the old lands for the year 1915, even if appellee had a contract for them for that year and said instruction given relative to the measure of damages was erroneous, since the suit was for damages for refusal to give possession of both the old and the new land.

A specific objection was made to said instruction, because it did not state correctly the rule as to damages for the old land and the court refused appellant’s said instructions, stating the rule correctly.

There could be no recovery of damages for failure to give possession of the old lands for the year 1915, because there was no testimony showing any damages resulted. It is undisputed.-that the new ground was not worth as much as the old land for'cultivation, the testimony showing the value thereof to be about one-half, or $3 per acre. No damages being shown to have resulted from the failure to deliver possession of the old lands, the verdict of the jury should not have been for more than the rental value of the new ground, 67 acres, for the year 1915, and if a remittitur is entered within fifteen days, reducing the judgment to that' amount, or $201, the judgment will be affirmed; otherwise, for the errors indicated, the judgment is reversed and the case remanded for a new trial.