(after stating the facts). The court did not err in modifying the prayer for instruction of which appellant complains, and in giving the same as modified. The conduct of the agent of the appellant, as shown by the evidence, warranted the court in submitting to the jury the question as to whether or not the appellant led the appellee and its employees to believe that no rent would be charged or collected from appellee for the use and occupancy of the building during' the time that the fruit exhibit was stored there.
When the agent of the appellant was approached to see if the building could be obtained, he disclaimed having any thing to do with it, and referred the agent of appellant to the brother of the owner of the building, who, he stated, had the key. He made no demand for rents, and did not in any manner indicate that his company, appellant, would expect the Fair Association or any one else to pay rent during the time that this fruit exhibit was being collected and displayed. At that time the appellant company was itself denying that it was in any way responsible for the rent of the building. This being true, it could not be at the same time consistently claiming that some one else was indebted to it for the use and occupancy of the building. This conduct on the part of the agent of the appellant was sufficient of itself to induce those who were attempting to get the use of the building to believe that no rent charge would be made, at least on the part of the appellant.
The court did not err in giving instruction No. 2. This instruction was really more favorable to'appellant than the testimony warranted. The purport of the testimony of the general agent of the appellee was to the effect that at least 90 or 95 per cent, of the business that he transacted while he was occupying the building in controversy, was for the Mena Land and Improvement Company, and not for the appellee. The small per cent, of business transacted there on behalf of appellee might be well considered as merely incidental, and certainly not sufficient to warrant the conclusion that appellee was the. sole occupant, or indeed the main occupant, of the premises during the time for which appellant seeks to recover rent.
The instruction was abstract in submitting to the jury to determine whether “G. B. Wood, the general agent of appellee at Mena, had power and authority to occupy the premises for the use of which this suit is brought.”- But of this appellant has no right to complain. As we view the testimony, the undisputed evidence shows that the building during this time was not taken possession of by G. B. Wood as agent of appellee at all; but, on the contrary, the possession of the building was procured during his absence from Mena, and same was brought about through the instrumentality of representatives of the Fair Association or the citizens of Mena who were making a collection of fruits. The building was procured and possession taken by those who were not representing appellee at all, and, so far as the record discloses, were not authorized in any manner to represent the appellee in taking possession of and occupying the building for the purpose of gathering this fruit display.
It is doubtful under the evidence as to whether any one would be responsible to appellant for the use and occupancy of the building during the time for which it seeks to recover rent in this case; but certainly, if any one would be liable for such rents, under the undisputed evidence in this case it is not the appellee, and the verdict of the jury was correct in so finding.
We find no errors in the rulings of the court in the admission or rejection of testimony prejudicial to appellant. The judgment upon the whole case is correct, and is therefore affirmed.