Norton v. Hindsley

Paul Ward, Justice.

The prime issue is whether Mary Gr. Norton (land owner, and appellant here) entered into a valid lease with Roy Hindsley (lessee, and appellee here) for the years 1967, 1968, and 1969. The issue is further clarified by the pleadings — summarized below.

On February 13, 1967 appellant filed a complaint against appellee in circuit court, alleging in substance: appellee is claiming right to possession of certain lands (described in detail), but is in unlawful possession of same; appellee unlawfully refuses to relinquish possession, and; appellant has been damaged in the sum of $500. The prayer was for a Writ of Unlawful Detainer; that she be given possession of said lands, and a judgment for $500.

In answer to above appellee alleged: that on or about November 1, 1966 he made a binding lease agreement with appellant for the years 1967, 1968, and 1969 for $15,000; that appellant accepted his rent notes for said amount, and; that appellee had been renting the land for the past twelve years and that, even if no new lease agreement was made, appellant had failed to give him proper notice of termination.

On May 10, 1967 appellant filed an amendment to her original complaint, alleging: appellee occupied the land for the year ending December 31, 1966 “under an oral one-year contract”; appellee was notified by mail on November 10, 1966 that “all rights of possession” terminated on the above date.

The issues were tried before a jury which found for appellee, and a judgment was so entered.

For a reversal appellant relies on two points which we now discuss.

One. “Appellee’s actions, as a matter of law, did not take an oral lease for three years out of the operation of the statute of frauds.” For reasons, mentioned below we do not agree with appellant.

In the first place, appellant did not plead the statute of frauds as required by many of our decisions. In Smith v. Milam, 195 Ark. 157 (p. 158), 110 S.W. 1062 we said:

“A sufficient answer to this is that the statute of fraud was not pleaded in the lower court and cannot be interjected into the case for the first time on appeal.”

See also Rogers v. Moss, 216 Ark. 838, 227 S.W. 2d 630, and Dunn v. Turner Hardware Company, 166 Ark. 520, 266 S.W. 954. It is also pointed out that appellant asked the court (Inst. #2) to instruct the jury to find in her favor unless it found she did not sign a written agreement for the leasing of her lands”. This Instruction was refused, and we think properly so. There was no contention on the part of appellee that she signed anything. At any rate appellant does not here contend the court erred.

Furthermore, appellee offered testimony which, in substance, shows: he consulted with appellant in October of 1966 about renting the land for three years; that she was agreeable, and instructed him to prepare the rent notes; that he prepared the notes, signed them, and delivered them to appellant; that, relying on the agreement, he prepared ninety acres for cultivation, and; that he never heard anything further from appellant for some three weeks later. These issues of fact were submitted to the jury under appellant’s own requested instruction no. 1 and appellee’s instruction no. 2 which were given by the court.

Two. We also find no merit in this point which reads:

“The question of the good faith and bona fide intentions of the appellee in holding over after the expiration of his lease and after the required notice should have been submitted to the jury.”

So far as we can determine from the record this issue was, in general language, submitted to the jury. Certainly appellant asked for no specific instruction on this point. The trial court did refuse appellant’s requested instruction no. 2 on the ground that the issue had already been covered in other instructions. We agree with the trial court.

Affirmed.

Fogleman, J., concurs. G-eorge Rose Smith, Brown & Byrd, JJ., dissent.