Rundell v. Rogers

Wood, J. This action was brought by the appellee against the appellant. The appellee alleged that he rented about five acres of land from the appellant which was to be cultivated in corn during the year 1918; that appellee was to pay one-third of what was produced to the appellant; that appellant with the permission of appellee gathered his share of the corn; that in doing so he gathered more than one-third; that the appellant negligently failed to keep the fence in good repair around the land and thereby negligently permitted hogs to get in the field and to eat and aestroy all the corn that appellant left; that on account of the negligence of the appellant, as set forth, the appellee lost thirty bushels of corn, worth $1.75 per bushel. The appellant denied the allegations of the complaint. The appellee testified to the renting of the land as set forth in the complaint and that he planted the same in com; that after the crop was laid by he went away and was gone until late in the summer; that on his return he found that appellant’s hogs had been getting in the corn; that the inclosure around appellant’s pasture, which was within the same general inclosure as the cornfield, was not hog proof; that he saw appellant’s hogs in the pasture and saw hog tracks where they had been passing through an opening under a culvert between appellee’s cornfield and appellant’s pasture; that appellee gave appellant permission to gather his share of the com; that later when appellee came home he found that all the corn was gone. Over appellant’s objection appellee and other witnesses were permitted to testify that the custom in that locality was for the owner to keep up the fence around a farm when it was rented. To this ruling of the court the appellant duly excepted. According to the undisputed evidence there was no agreement on the part of the appellant to make repairs of any kind. From a judgment in favor of the appellee is this appeal. “Unless a landlord agrees with his tenant to repair leased premises, he can not, in the absence of a statute, be compelled to do so, ” is a rule of law well established in this State and elsewhere. Delaney v. Jackson, 95 Ark. 131; Jones v. Felker, 72 Ark. 405; Brown v. Dwight Mfg. Co., L. R. A. 1917 F, 997; 16 R. C. L. 1030, sec. 552, n. 18; 18 Am. & Eng. Enc. of Law 215, 4a. A local custom can not be shown in order to render the landlord liable for failure to make repairs in contravention of the above well esta ished rule. 18 Am. & Eng. Enc. of Law 217. “The tendency of modern decisions is not to imply covenants which might and ought to have been expressed, if intended.” 7 Wallace 423. Moreover, if it were competent to prove a local custom, the testimony adduced by the appellee in this case was not sufficient to show that the custom was of such long standing as to be generally known. St. L., I. M. & S. Ry. Co. v. Wirbel, 108 Ark. 437; Ward Furn. Mfg. Co. v. Isbell, 81 Ark. 549. The testimony concerning the local custom was, therefore, incompetent and the court erred in admitting it. The error is prejudicial to appellant. The judgment is, therefore, reversed and the cause will be remanded for new trial.