912 ARK. RURAL REHABILITATION CORP. V. LONGINO. [192 ARKANSAS RURAL REHABILITATION CORPORATION V.LONGINO. 4-4344 Opinion delivered June 29, 1936. 1. APPEAL AND ERROR—FINDINGS OF COURT.—The findings of the court in a suit instituted for damages for breach . of lease , con-. tract as to . probable yield of lam& planted to oats which lessee agreed to do are as binding On the appellate court as the verdict of a jury, and is, therefore, conclusive, if there . is any substantial evidence in the record to eupport it. ' • • .• 2. •• LANDLORD AND; TENANT.—Where 120 acres 'of ..land . .was leased ,to be planted to oats and the lessee planted only 35 'acres, the re-• mainder being left to grow up in grass . and shrubs, evidence, in an action for damages sustained by not planting the lanil to oats as agreed and that it would cOst two or three dollars per acre to prepare the land for cultivation, 'is substantial and ' sufficient to support • court's findings as to damage sustained by reason of breach of lease to plant . land to oats. 3. APPEAL AND ERROR.—Where, on appeal, appellant's brief presents no exceptions to court's declarations of law controlling question's, the contentions for reversal being based solely on the insufficiency of the evidenee, the judgment will be affirmed as to the items involved, namely, 5,166 bushels of oats at 50 cents • per bushel, and $126.30 for damages to lands for failure to cultivate it.. 4. LANDLORD AND TENANT—EVIDENCE. 7-Where, in action for damages for breach of lease contract to plant land to oats, evidence that, since 'the land was permitted to grow up in grass and shrubs, it made a habitation for rabbits, which damaged..pecan trees, tended to prOve . special damage that could not be presumed to flow as a natural consequence from lessee's failure to cultivate the land, as there was no proof of lessee's knowledge of the predatory habits of rabbits with respect to pecan trees, and that failing to break the land would cause it to become infested with these animals, and i insufficient to' sustain verdict for damages to pecan trees caused by rabbits. •
ARK.]. ARK. RURAL REHABILITATION' CORP. • /1. L0NG1N0. 913 Appeal :from • .Miller Circuit Court ; Dexter Bush, 'Judge modified. • • .• • . , Floyd Sharp, T. E. Donham and Leon B. Catlett, for appellant: • •• • Ned A. -Stewart, for . appellee. Bomtu; ; - Action for damages -for breach of lease contract and appeal' from - judgment in favor- of appellee, plaintiff beloW. The contract was entered into on October 9, 1934; and 4esignated; , i 'Lease of Real EState for Small Grains." By its terms . the appellee leased 120' acres of land to the appellant 'corporation for a . periOd of time 'beginning with the date of the • lease . and terminating when ' the--ctop• Was harvested;- the consideration- therefor being . one'-fifth 'of -the -crop . .payable to the leSsor. 1),n. -October -12,...folloWing; the appellant sought a cancellation :of the "Contract, 'which • waS -refuSed, the reason given by- the appellee being that he had discharged his, tenants and -sold his mules and farming equipment. - - •• On - April .20, ,1935, -the appellant :planted to oats Approximately thirty-five ' acres of . the land : leased, ! but --did not -attempt . to cultivate ;any of the remainder of , the land in small grain or any -other character of crop. The land not cultivated .grew: Up in brush- and weeds. :Some -years before the :lease :contract was made the 120. acres of land had : been set to pecans, twelve trees to- the acre From•time; to . tithe a nurnber .of these- had died and had -been replaced .by others. • :In-the action damages Were laidln a sum equal to one-fifth- of the oat crop on the . entire,120 acres, for dam-' ages lo • the land by reason..of. failure to cultivate- it and -.thereby keep down. weeds and .shrubS, and- for further damage for the destruction of-a certain number -of:pecan -trees -occurring during appellant's- tenancy.. The .: :court, Sitting as a jury, -found for the plaintiff (appellee): in .the sumS of $516:60_ for rent, $126.30 for damage toiands, $623.25 for loss of. trees . , and $91.50 for injury to trees, in the total sum of $1,357.65. The facts, as found by the court, briefly stated, are that there were 114.8 acres of tillable land in the tract -which, if properly -cultivated, would have yielded 5,166 bushels of. oats which, at the ••titne of harvesting; . were.Worth fifty cents a -bushel ;. that,
914 ARK. RURAL REEtABILITATION CORP. 1). UNGINO.. [192 under the leaseappellec was entitled .to . one-fifth "of the amount which would have been realized. In-addition:to -this' the 'court found that owing‘tO apPellant's negligence and its breach of contract, a certain number. of : pecan trees were destroyed, valued. at $2.25 'each, certain'other number were:partially destroyed to the . extent•of. seventy-five .-cents . each; and - that 84.2. acres had grown np .bushes' by y eason.of :appellant's. failure to, cultivate the : land to, appellee's damage in:the, sum of .$1.50 . .per. acre. 'The court :declared the. law to :be . that, _under the,.lease, •the' appellant. was .required. to: follow : the ; tisual and. cus-• temary...methods prevailing 'in the cultivation of .land for grain, that : oats •was.: the grain contemplated to; be planted, .and . that in 'failing :to cultivate the land appel-hint :was ::liable.. for . all damage. sustaine , d ! by :reason ,:o.f r failure ;to ,comply, with the cantract,:.including damages to :the property, itself, the rent, of. the land,..and the .dain-age to growing :trees, thereon, . : .The appellant :Contends ; that' th& : judgment ' . of the 7 trial Court i's 'contrary to 'the , evidehee : 'first, ■ as to the !yield 'Of appellee's land' per 'acre: if planted to dats',. and,' secOnd, •'a S ' to 'the daniage: Sug tained by reason .of aPPellant :. 's fail-•üte "to: Cultivate the . same: . I The • judgnient 'of the Court beloW on these : questions *is cenclusive 'if' there is.any sub-: Stantial evidence' in the record to* support it... •The game tule 'Obtain§ Where the court : sits •as a jnry as , where the jury itself renders the verdict. This Yule is , so• estab-' lished- and : has been . stated' so • many times by this ! court : that the citation 'of anthorities • is . superfluOus.. We 'there-' fere ; OtAinifie' • the •te gtiniOny,.: giving. , to it its strongest probative value .in . 'order to 'support the finding of • •the lOwer f court;' if' that be posSible.' Thus Considered, it .may 'he 'briefly stated as folloWs :" It was Understood . that the plirpos6 in mind of • the •parties' to the leaSe was that the 'lands' 'in '.question should - be 'planted AO' Oats: - The leaSe WaS . entered : into: : earlY 'in' October; .1934, but 'no part , of "the Jan& •Was 'put to oat g until April 20; 1935. The: land Vas' fertile 'and Well drained.' Land 'in the' immediate vicinity : 'and of : ' • the same character,' and not as -Well • 'drained, : 'produced on an alrerage, forty-five bushels •of • 'oats Per : acre. 'Only' thirtY-five acres of the' land . leased
A:RK.] ARK. RtaiAL RETIABILUATION OORP:' V LONGINO. 915' was broken: and . planted to oats by . the .aripellant,.,and• the remainder, because: : it; : was not 'put in,cultivation; grew up in grass and shrubs rwhich must' be Irembved before; the: land ean -again ;be cultivated.. ThiS .will cost; betWeentwo and three dollars-an . acre:: This' evidence-was of; a substantial nature and supports the;`,finding of Ahe' trial -Court,- although there wa g • substantiarevidence' in. oontradiction.-:01,:;. • •, , : ! ,.! ,•':' - • The trial; court was the jUdge of ' the Credibility of the „witnesseS and , the , weight to : be acCorded their testimony.,.v., : ju4grientro these , :mattors,:fike that' of .the. jury,. is , ' binding , upOn us. As appellant 'S brief' presents,. no exception that the trial:eOurt was . in -erro'r' in AS laration.as tO thejaw controlling . on.the above ,quegtions, the, contentions : for reversal being ,based , solely on;.the insufflciency, ,d , Oe . . evidence, the ;judgnient .naust.be::af-, firplça , ,a§ ;to these items. The tnal Cou . rt , found'in faVor of the a441elleefoi . th'e destruction Of a;riUrnber Ofpecan trees • , an • d fo • r , : dainageS fOr injury to dtherS , . :' aniounting'' to' the' 'Sinn 'Of ,$6.23.25 aiiia . '01 . 54,' a' 'total • : of .$71 5 .4 . . ' 7 AS :tn : theS , e: ' it eM i S t. is &intended th'ereiS no evidence •SnffiCient . to'fi.'liabilitY . On' the appellant. To this contention -W'd 'agree; It IS:ttrite,. there was testimony to the effect that some of the trees had been killed and others injured during the winter of 1934-3 . 5 by rabbits which found , shelter . in the weeds and bushes alloWed tO gro* and remain on the land, and that if the land had been put in • cultivation the rabbits would not have invaded the pecan-grove and inflicted the damage. This teStiMony was 'given bY One who 'Was engaged in the. servicing; budding and grafting . of pecan trees; as part of hiS occupation, ,and elaiined to have . had ten years ' exPerience in thrs , buSineSS ; :If we give full effect tO this evidence; still liability attaches tO..the appellant, for the.,reason:that the damages, claimed,are special in their nature, and; would . not 'naturally . flOw-from''breachof contraCt Of leaSed land'for the-purpOse . , of cultivation in - small grains. There iS'ne evidence tO the e#ect that appellant . was. apprised of the predatory' habits ;of; rabbits with respect to pecan trees, and that a failure to break1;
916 [192 the land in the fall or early winter would cause the or-. chard to become infested with these animals. The law is well settled as to the character and quantum Of evidence necessary to support special damages awarded for breach of contract. The rule is stated in Southwestern Bell'Telephone.Co: v. Cart er;.181 Ark. 209, 25 S. W. (2d) 448, cited by the appellant,. as follow§: "To make him liable for the special damages in':such case, there must not only be knowledge of the special cirL cumstances, but such knowledge 'must be brought.home to the party sought to be charged under sueh:circumstances that he nMst know that *the person he dontracts. with ieasonably believes that he accepts the 'contract. with the special condition attached to it.' 'In other words, where there is no e-)q3reSs cOntract to' Pay suCh special damages, the facts and circumstances in proof must be such as to make it reasonable for th6 -judge or jury trying the case to 'believe that the party at the tim0 of the- contract tacitly consented to be bound to:more than ordinary damages in case of default on his•part.", . The judgment of the trial court will, therefore, be, modified so as to eliminate the special damages 'allowed for destruction and injury to tbe pecan trees, , and, as modified, it is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.