Basin Park Hotel Ass'n v. Arkansas Co.

Hart, J., (after stating tbe facts). Tbis is tbe second appeal in tbe case, and tbe opinion on tbe former appeal is referred to for a more detailed statement of tbe case. Basin Park Hotel Assn. v. Arkansas Co., 151 Ark. 322. Tbe electric light globes in tbe electric light fixtures were in tbe various rooms of tbe bot-el at tbe time tbe lessor delivered possession of tbe hotel to tbe lessee under tbe terms of tbe lease, and, as they wore out or became defective, new ones were supplied by tbe lessee. These globes were screwed in the electric light fixtures, and remained there at the'time tbe purchaser under tbe mortgage foreclosure decree took possession of tbe mortgaged premises. In other words, when tbe lessee was evicted under tbe mortgage foreclosure proceedings, tbe electric light globes were left screwed in tbe electric light fixtures and passed into tbe possession of tbe purchaser under tbe foreclosure proceedings. Tbe value of these electric light globes was $114.(80. Tbe lessor recovered their value from the lessee in this action. Tbis was error. As we have just seen, tbe lessee was given possession of these globes which were screwed into tbe electric light fixtures at tbe time tbe hotel was turned over to it under tbe lease. Tbe lessee was evicted before its term expired, and the purchaser under tbe mortgage foreclosure proceedings against the lessor acquired possession of these electric light globes at tbe time it took possession of tbe hotel. The lessor was a party to the foreclosure proceedings, and, if these globes were not included within tbe terms of tbe mortgage, it should have looked to tbe purchaser in tbe mortgage foreclosure proceedings, and bad no right to look to tbe lessee for their recovery. If the lessee had been permitted to retain possession of the hotel until its lease expired, then it should have accounted to the lessor for the globes. It is conceded, however, that the lessee was unlawfully evicted before its term expired, and, under the circumstances detailed above, it is not liable to the lessor for the value of the electric light globes. Hence the judgment in favor of the lessor in this respect is erroneous and calls for a reversal of the judgment upon the complaint of the plaintiff. The next assignment of error is with regard to the instructions on the measure of damages upon the counterclaim. At the request of the lessee the court gave instruction No. 8, which, as modified and given by the court, is as follows: “8. The court tells you that the defendants are entitled to recover on their counter-claim the difference between the rent agreed upon and the rental value of the premises for the unexpired portion of their term, as shown by the evidence; also for the value of the option to renew their lease, as shown by the evidence; also the amount expended by the defendants, if any, for repairs and improvements which could be used only upon the premises, regardless of whether such repairs or improvements were authorized by plaintiff, or were of any value to plaintiff; also whatever amount the evidence shows the defendants spent for dishes, linens, supplies, repairs or improvements. ’ ’ At the request of the lessor the court gave instruction No. 2, which is as follows: “2. I charge you that, if you find for the defendants on defendants’ counterclaim, then the only damages you would be authorized to assess in defendants’ favor, because of eviction by paramount title, would be the difference between the rent reserved, that is the rent defendants were to pay by the terms of the lease, and the rental value of the property during the period of the lease, if any is proved by a preponderance of the evi-deuce, together with what special damages for repairs, fixtures and materials furnished by defendants, in order to make their operation of 'said hotel profitable, if any are proved by a preponderance of the evidence on the part of the defendants, and if the rental value of the hotel is not proved' greater than the rent reserved, then you can only assess nominal damages on that issue. By rental value of the hotel, as used in this instruction, does not mean probable profits of said hotel under the lease, but what the evidence shows would be the fair rental value of the hotel for the term of the lease, above the rent defendants were to pay for the hotel.” The opinion on the former appeal is the law of the case, and by reference thereto it will be seen that the court held that the lessee was entitled to recover the value of its option to renew the lease, if such value was shown by the evidence. Instruction No. 8, copied above, properly submits this issue to the jury. Instruction No. 2, as copied above, and which was given at the request of the lessor, omits any right to recover the value of its option to renew the lease by the lessee. The instruction specifically tells the jury what damages the lessee will be entitled to recover on the counterclaim, and omits entirely the item with reference to the option to renew the lease. Having omitted to submit to the jury the value of the option to renew the lease as a part of the measure of damages suffered by the lessee for its unlawful eviction from the leased premises, it is obvious that the instruction is in conflict with instruction No. 8 on the same subject. This court cannot know which of the two instructions the jury followed1. According to the evidence for the lessee, the value of the option to renew the lease was worth $5,000. Hence the giving of the contradictory instructions was necessarily prejudicial to the rights of the lessee and constitutes reversible error. Rector v. Robins, 74 Ark. 437, and cases cited; McCurry v. Hawkins, 83 Ark. 202; Kelly Handle Co. v. Shanks, 146 Ark. 208, and Webb v. Waters, 154 Ark. 547. Therefore, for the errors in allowing the plaintiff to recover the snm of $114.80 for the electric light globes ■and for the error in giving instruction No. 2, as above set forth on the measure of damages on the counterclaim, the judgment is reversed, and the cause will be remanded for a new trial.