Storthz v. Watts

Hart, J. (1) This is an action of unlawful detainer instituted by L. Storthz to regain possession of a farm which he had leased by oral contract to J. A. Watts. This is the second appeal in the case. The opinion on the former appeal is reported in 117 Ark. page 500, under the style of Storthz v. Watts. Reference to that opinion is made for a more extended statement of the issues involved. The opinion on the former appeal is the law of the case and in that opinion the court held that in order to take an oral contract of lease of land out of the statute of frauds, there must be substantial expenditures in the way of performance of the contract over and above the mere occupancy of the land, and payment of rent for the period actually occupied. The jury again returned a verdict for the defendant for $160.00 and from the judgment rendered the plaintiff has appealed. The plaintiff testified that he rented the land to the defendant for the year 1913, and that there was nothing said about a longer lease of the land. That there were eighty acres in cultivation and that the defendant agreed to pay him $3.00 per acre therefor. On the other hand the defendant testified that he would not have rented the land for the year 1913, alone, because'the fences were out of repair and that the fields were grown up in bushes and that many logs were there which needed moving. The defendant said that he only agreed to cultivate forty acres of land for the year 1913, and pay the defendant $3.00 an acre therefor. That he was to cultivate the whole eighty acres for the year 1914, and pay the plaintiff $5.00 an acre therefor. The defendant further stated that the winds have blown a great many trees down in the field and that he piled and burned the logs. That locust bushes and hickory sprouts twelve feet high had grown up in the fields and that the fences had been torn down in many places and were badly out of repair. That he cut and burned the bushes that had grown up in the fields arid made permanent repairs of the fences. That these repairs were necessary in order that the land might be profitably cultivated and that these improvements and permanent repairs cost him something like $100.00. The judgment in the case on the former appeal was reversed because the court did not think there was sufficient testimony to warrant a finding that there had been such performance of the contract as would take the case out of the operation of the statute of frauds. The testimony was different on the retrial of the case according to the testimony of the defendant which is set out above and need not be repeated here. The «cost of the improvements when compared with the rental value of the land shows that the defendant made substantial expenditures in the way of performance of the contract over and above the mere occupancy and payment for the period actually occupied. At the least the jury was warranted in finding such to be the fact. 2. Therefore the evidence was legally sufficient to support the verdict. Complaint is made by counsel for the plaintiff that the court erred in giving certain instructions to the jury. All the instructions given by the court are not set out in plaintiff’s abstract but only the instructions complained of by him are abstracted by the plaintiff. Where all the instructions are not abstracted, it will be presumed on appeal that refused instructions are covered by those given. De Queen & Eastern Ry. Co. v. Thornton, 98 Ark. 61; Brown v. Simsboro Cash Store, 102 Ark. 531; Wallace v. St. L. I. M. & S. Ry. Co., 83 Ark. 356; Reisinger v. Johnson, 110 Ark. 7. Moreover the defendant in his abstract sets out an instruction given by the court and this instruction correctly instructed the jury as to the issues involved. Therefore, the judgment will be affirmed.