Byers v. Moore

Smith, J., (after stating the facts). The items numbered 2, 3, 4, 6 and 7, are not recoverable, because they are too remote, and the items numbered 1, 12 and 13 are not recoverable because their value was not affected by appellee’s eviction. DarSages on the remaining items were recoverable, except as hereafter stated, if the jury accepted appellee’s statement of the fact that these expenditures were a loss to him after his eviction. The measure of damages in such cases is stated in the opinion in the case of McElvaney v. Smith, 76 Ark. 468, Avhere, in an opinion delivered by Mr. Justice Bid-dick, it was said: “When a landlord unlawfully evicts a tenant from the premises, the tenant is entitled to recover as damages Avbatever loss results to him as a direct and natural consequence of the wrongful act of the landlord. If the rental value of the place from which he is evicted is greater than the price he agrees to pay, he may recover this excess, and in addition thereto, any other loss directly caused by the eviction, such as the expenses of removing to another place.” Item No. 15 is not recoverable, because the proof shows it was an expense incurred in removing into the building, and no part of it was incurred in removing therefrom. It is conceded that appellee made certain repairs in the building without having procured authority from appellant to do so, and without any promise on her part to pay therefor, and appellant therefore insists that the court was in error in submitting those items to the jury. It is true, as stated in the case of Delaney v. Jackson, 95 Ark. 131, that: “Unless a landlord agrees with his tenant to repair leased premises, he can not, in the absence of statute, be compelled to do so, and can not be held liable for repairs.” But that principle does not apply here. Having made these repairs for his own use and ■without appellant’s promise to pay for them, he would have had no right to recover their cost, had he voluntarily surrendered the premises; neither would he have been entitled to their cost under these circumstances had he been permitted to occupy the building until the expiration of his term. But appellee did not voluntarily surrender the premises, and he was not permitted to retain possession until the expiration of his lease. If, therefore, appellee expended money in the repair of the building and the fixtures which would have enabled him to occupy it more profitably, and he was unlawfully deprived of its use, he would be entitled to recover the money thus expended, and this would be true even though those repairs were not of value to the landlord. The application of the principle which we have announced to the proof in regard to item 9, and possibly other items, will determine whether appellee should be given these credits or not. The damage should cover whatever loss results as a natural consequence of the wrongful eviction. If putting in the vent-head on the stove was a repair or improvement which could he used only in the demised premises, the appellee would be entitled to its cost, but if it had a usable value elsewhere, then appellee would not be entitled to include that value in his recovery. So with the linoleum which appellee said he had cut to fit his floor. Appellee was permitted to introduce proof in support of all the items set up in his cross complaint, and which aggregates $398, and there is nothing in the record to indicate what items were allowed by the jury. Under instruction No. 3, given by the court, and the proof of the items set out above, the jury might have found that all the items there set up, which were established by the proof, were to be regarded by them as a direct result of appellee’s being dispossessed, and this instruction also allowed the jury to find for appellee the expenses incurred by him in moving into the building, when only the expense of removal therefrom was recoverable. The instruction was therefore erroneous and prejudicial and the judgment must be reversed, and it is so ordered.