(concurring). My concurrence is because of some matters not mentioned in the majority opinion. Meers claimed a breach of the lease contract on either one of three grounds:
1. Alterations without lessor’s consent;
2. Non-use of upper floors of the building;
3. Erection of a sign.
I agree with the majority opinion on both the second and third grounds: there was no requirement in the lease for full use of the upper floors; and the matter of the sign was rather trivial. But as to the first ground claimed by Meers — i.e. alteration without lessor’s written consent— I have an entirely different view from that expressed in the majority opinion. I think the alterations were material; and I cannot find any consent by Meers or Stearns that would cover the extensive alterations made. So I think Meers made a good case on the matter of alterations ; but he waived his case on that point by his subsequent conduct.
The record discloses that in the course of the trial the defendant (Tommy’s Men’s Store, Inc.) denied that there had been any unauthorized alterations in the building, but offered to deposit in escrow a sum sufficient to guarantee restoration1 of the building to its original condition at the end of the lease period. The decree from which this appeal comes was entered on April 22, 1958, and contained the following language:
“Therefore, it is ordered ánd decreed that: . . . 2. The complaint of the plaintiff as to the defendant Tommy’s Men’s Store, Inc., be, and the same is hereby, dismissed.
3. The defendant Tommy’s Men’s Store, Inc., shall deposit the sum of $4,000 in cash or United States Bonds with Worthen Bank & Trust Company as Escrow Agent to be held and disbursed upon the following terms and conditions, to-wit:
(a) The Escrow Agent’s fee shall be paid by Tommy’s Men’s Store, Inc.
(b) If United States bonds are deposited, the income therefrom shall be paid to the defendant Tommy’s Men’s Store, Inc.
(c) At the termination of the lease now in effect, Tommy’s Men’s Store, Inc., shall, at the election of the plaintiff, remove the additions made to the leased premises by Tommy’s Men’s Store, Inc., and restore the same to the condition which existed as of the date the lease was executed. Upon failure on the part of Tommy’s Men’s Store, Inc., so to remove and so to restore, the plaintiff may remove the additions made to the leased premises and restore the same to the condition which existed as of the date the lease was executed, and the cost thereof shall be paid to plaintiff by the Escrow Agent. If the parties cannot agree as to the proper amount to be paid, the question shall be settled by supplemental order of this court. If the plaintiff does not elect to have the additions removed and the premises restored to the condition which existed as of the date the lease became effective or of the defendant Tommy’s Men’s Store, Inc., removes such additions and restores the premises as hereinabove provided, the Escrow Agent shall pay the funds held in escrow to Tommy’s Men’s Store, Inc.
(d) This Court retains jurisdiction to settle all issues arising in connection with the disposition of the principal amount of the funds or United States Bonds placed in escrow, and the Escrow Agent shall not be required to disburse any part thereof to either the plaintiff or Tommy’s Men’s Store, Inc., until ordered to do so by this Court.'”
In accordance with the above copied decree, an Escrow Agreement was signed by the parties and the Escrow Agent on May 12,1958; and the agreement reads:
“THIS AGREEMENT, Made and entered into by and between PAUL MEERS, hereinafter referred to as “Meers,” TOMMY’S MEN’S STORE, INC., hereinafter referred to as “Tommy’s,” and WORTHEN BANK & TRUST COMPANY, hereinafter referred to as “Escrow Agent,” WITNESSETH:
1. On May 22,1957, Meers leased to Tommy’s for a period of five years the North 41 feet of Lot 5, Block 5, Original City of Little Rock. The lease provides that subject to certain conditions it may be extended for an additional period of five years. Recently there has been litigation in the Pulaski Chancery Court involving the said lease, and attached hereto and made a part hereof is a copy of the Decree entered in said court on the............day of April, 1958.
2. Tommy’s has deposited with the Escrow Agent the following described United States of America “E” bonds:
(here follows number and description of bonds of the face amount at maturity of $5,325.00)
3. Escrow Agent acknowledges receipt of said bonds and agrees to hold them in accordance with the terms of this agreement. All interest which may accrue on said bonds shall belong to and be paid by the Escrow Agent to Tommy’s. Neither the bonds nor the proceeds thereof shall be delivered or paid by the Escrow Agent to Meers or Tommy’s except upon presentation to the Escrow Agent of a certified copy of an order of the Pulaski Chancery Court authorizing such delivery or payment.
4. The fee of the Escrow Agent shall be paid by Tommy’s. Dated this 12th day of May, 1958. ’ ’
I maintain that when Mr. Meers signed the said agreement of May 12,1958, he accepted benefits under the decree entirety inconsistent with his claim for cancellation of the lease because of unauthorized alterations in the building. He cannot now insist on unauthorized alterations in the building, because he accepted the benefit of the Escrow Agreement. Por some cases and texts on this matter of accepting benefits inconsistent with the appeal, see Jones v. Rogers, 222 Ark. 523, 261 S. W. 2d 649, and cases there cited. See also annotation in 169 A. L. R. 985 entitled: “Right of appeal from judgment or decree as affected by acceptance of benefit thereunder.”
Because of the acceptance of the benefits inconsistent with the decree, I think Mr. Meers lost the right to make any claim of unauthorized alterations in the building; and that is the basis of my concurrence.
If there had been no material alterations, then there need not have been a deposit; so sueh offer was almost tantamount to admitting that there had been alterations without the lessor’s prior consent.