STATEMENT OF FACTS.
F. Johns and N. Johns sued A. O. Hudson before a justice of the peace to recover $250, rent on a storehouse *Page 1163 in the city of Blytheville, Arkansas. The defendant answered, denying owing plaintiffs any amount of money. He admitted that he contracted to rent the storehouse from plaintiffs for $125 per month, but alleged that plaintiffs agreed to repair the roof of the building and failed and refused to repair the leaks in said roof to the damage of the defendant. By way of counterclaim, defendant sought to recover special damages in the sum of $303.50 for damages to his stock of goods by reason of the defective roof. On motion of the defendant, the case was transferred to the court of common pleas where judgment was rendered in favor of the plaintiffs against the defendant in the sum of $222.50. The defendant appealed to the circuit court.
According to the evidence for the plaintiffs, they rented the defendant Hudson two storerooms in the city of Blytheville, Arkansas, for the sum of $125 per month. The rent was payable in advance. The defendant failed to pay the rent for the month of January, 1928, and plaintiffs gave the defendant notice to move. The defendant moved on the 22d day of February, 1928, but failed and refused to pay the plaintiffs the rent due for the months of January and February, 1928, in the sum of $250. The plaintiffs did not know anything about any claim for damages on account of a defective roof until after the defendant moved out. Several times the defendant asked the plaintiffs to have the roof fixed, and each time the plaintiffs complied with his request at a cost of $1.50 to $3.
According to the testimony of the defendant, he first rented one room from the plaintiffs, and had occupied it for seven or eight years before he rented the other room. About a year and five months before he moved out of the building, he rented both rooms from the plaintiffs at $125 per month. The rent contract was an oral, one, but the plaintiffs promised to repair the roof or put on a new one. The defendant knew that the roof had been leaking. The defendant complained about *Page 1164 the roof leaking from time to time, and the plaintiffs sent a man to make repairs on it. A new roof would cost from $274 to $300. Defendant paid his rent up until the first of January, 1928. Sometime right after Christmas in 1927, defendant told the plaintiffs that he had paid his last month's rent, but would not pay any more rent until the roof was fixed. His rent at that time was paid up until January, 1928. Defendant told plaintiffs that he would not stand the leaky roof any longer and showed the plaintiffs his goods that the water had ruined. Defendant said to one of the plaintiffs, "I will not stand it any more until you fix it," "and I thought he would fix it, and he said, `You move,' and I said, `That is what I am going to do'." The roof continued to leak during the months of January and February, and was leaking badly at the time the defendant moved. The defendant gave in detail a list of the goods in the store that were damaged and the amount of damages done to the goods. The total amount of damages, as testified to in detail by the defendant, amounted to about $300.
The jury returned a verdict for the plaintiffs for $218.75 with six per cent. interest from February 1, 1928, and a verdict for the defendant for diminution of rental value after January 1, 1928 in the sum of $109.37 also a verdict for the defendant on account of damages to merchandise prior to January 1, 1928, in the sum of $151.75. The circuit court found that the verdict struck a balance of $11.75 in favor of the defendant, and it was therefore adjudged that the defendant have and recover of the plaintiffs said sum, of $11.75 and costs. Plaintiffs have appealed. (after stating the facts). The judgment of the circuit court was wrong. Where there has been a breach of agreement on the part of the landlord, to make repairs, if the repairs are, extensive and the cost excessive in comparison with the rent, the measure of the *Page 1165 tenant's damages is the diminution of the rental value of the property by reason of such nonrepair; but where the repairs are inexpensive as compared with the rent, the measure of the tenant's damages is the cost of making such repairs. Young v. Berman, 96 Ark. 78, 131 S.W. 62, 34 L.R.A. (N.S.) 977; and Frank v. Rogers, 156 Ark. 120,245 S.W. 311.
According to the testimony of the plaintiffs, the cost of the repairs was small, and the plaintiffs repaired the roof whenever they were asked to do so by the defendant. The defendant did not claim that there was any serious damage to his goods on account of the defective roof. The defendant admitted the rental contract and that he had agreed to pay $125 per month as rent. He denied, however, that he made no complaint to the plaintiffs about the leaky condition of the roof. On the other hand, he testified that he made numerous complaints about the leaky condition of the roof. He stated that he kept the rent paid up until the first of January, 1928. According to his own testimony, he then made complaints about the leaky condition of the roof, and the plaintiffs told him if he was not satisfied to move out. He replied that he would do so, and stated that he did do so on the 22d day of February, which was as soon as he could obtain a suitable store building for his business. Under these circumstances, he was not entitled to any damages for the difference between the rental value of the premises in the condition resulting from the failure to repair the roof, and what their rental value would have been if the plaintiffs had repaired the roof properly. The defendant could not notify the plaintiffs that he was going to move on account of the failure of the latter to repair the roof and then continue to occupy the premises at a reduced rental. Therefore, in the application of the principles of law above announced, under his own testimony, the court erred in submitting to the jury the question of his right to recover damages on account of the diminished value of the premises by reason of the defective condition of the roof. *Page 1166
The instructions upon which the case was submitted to the jury are not included in appellant's abstract and brief; and, under our settled rules of practice, it will be considered that the jury found the amount of rent due the plaintiffs under proper instructions from the court. In the application of this familiar rule of practice, the court must also indulge the presumption that the right of the defendant to recover special damages to his goods on account of the failure of the plaintiffs to repair the leaky roof was submitted to the jury under proper instructions. This court has always held that upon appeal it will be considered that the instructions given by the court are correct unless the instructions are set out in the abstract and brief of appellant and proper exceptions saved to the giving of them. Morris v. Raymond,132 Ark. 450, 201 S.W. 116; Brown Bros. Carnahan v. Smiley, 158 Ark. 640, 244 S.W. 351; Bish v. Woods,162 Ark. 463, 258 S.W. 352; and National Life Accident Ins. Co. v. Robinson, 181 Ark. 1, 24 S.W.2d 878.
It will be noted that the jury made a specific finding of the amount of rent due the plaintiffs and of the measure of damages due the defendant on account of the diminished rental value of the premises, which we have held that the defendant was not entitled to recover under his own testimony. This error may be corrected without a reversal of the judgment. The error may be eliminated by rendering judgment here for the amount found to be due in favor of the plaintiffs for rent less the amount of special damages suffered by the defendant by reason of the rain which descended upon his goods and damaged them. The amount of the rent due the plaintiffs, as found by the jury, was $218.76, and the amount of special damages for the goods damaged due the defendant was $151.75. This leaves a balance in favor of the plaintiffs of $67.01, for which sum judgment will be entered here in favor of the plaintiffs, with interest at the rate of six per cent. per annum from February 1, 1928, which was the date when the last installment of *Page 1167 rent was due. The cost of the appeal will be adjudged against the defendant. It is so ordered.