This is the case remanded, upon the opinion reported in 32 Ark., 311, which was again tried below, upon an answer which, without objection, was accepted as putting in issue all material facts, as alleged in the complaint after amendment.
We find, amidst a conflict of evidence on other points, the fact on all parts admitted, that defendant was a tenant of plaintiff’s vendor, claiming no other right of property in the house than as such. There was proof also by defendant, tending to show that some time in 1875 he had rented the premises by parol contract for three years; and had also a verbal contract with the former owner, by which he might make improvements upon the house to fit it for a saloon, which he had on his part performed to the value of $269, and for which he wgs entitled to retain rents. All agree that the rents were to be paid by the month, at the rate of $75 for the fall aud winter months, and $50 for the dull or summer months. There was counter-evidence to the effect that the tenancy by verbal contract was purely at will, to cease immediately on the sale of the property by the OAvner, and without any alioAvance for improvements. These matters were for the jury.
The court, of its own motion, after acting upon the tions for instructions upon both sides, adAfised the jury, that if they believed the defendant entered upon the premises under a verbal contract for three years, with the-privilege of making certain improvements, to be allowed out of the rents, and he made them, he could not- be turned out *522until the improvements were paid for; but the jury were not to consider the improvements at all, unless they were made under such a contract.
This, under the circumstances of the case, was correct, since it seems that the action was begun within a year. Our statute of frauds varies in this respect, slightly, from that of 29 Charles, 11, secs. 1, 2 and 3. That makes all parol leases have the force and effect of estates at will only, except those for three years or less, where the reserved rent is at least two-thirds of the improved value. Our statute (2960 Gantt's Digest), after declaring that all parol leases shall have the force and effect of estates at will only, proceeds, in the same section, to provide that they “shall not, either in law or equity, be deemed or taken to have any other or greater effect or force, than as leases not exceeding the term of one year.” By the fifth clause of section 2951, it had been provided that no action should be brought to charge any one on a contract for a lease for a longer term than one year, unless the contract should be shown by some writing.
Without stopping to discuss the obvious obscurity of section 2960, we may say that under its provisions, and in accordance with its intent, a parol lease of three years may have such vitality as to support agreements with regard to the subject-matter, and, for the purposes of justice, be enforced for one year, although made for a longer time. This doctrine was recognized in Halbut v. Forrest City, 34 Ark., 246. If it were true that the improvements were made under such a contract, as some of the evidence tended to show, the lease should have force during one year at least, if'necessary to protect the tenant m his expenditures, the facts being, of course, left to the jury.
But this would result from the agreement itself, and not, in an action at law, from the equitable doctrine of part *523performance. The operation of that doctrine would require a cross-complaint in equity, in which the lessee would seek to have his term for three years quieted, and might recover, as an incident to the suit, such damages as he may have suffered from the dispossession. There was no such •cross-complaint, nor transfer to the equity docket.
Part perform anee “^^0”88 ■
Leasks: Parol, not extended vanee payl rent,'8 or k“nts.°re
3. iisuwtamer: of proof.
The court, in the defendant’s third instruction, erred in saying to the jury, in effect, that if the defendant entered under a verbal lease for three years, and made improvements, in pursuance of it, of a permanent nature, which were accepted by the plaintiff', it would be such a part performance as would entitle defendant to claim the full benefits of such.lease for three years. This is the true rule in equity alone, and can not be used in defense of an action of forcible detainer. It was a very material instruction, as it might affect the damages, although the plaintiff' may not have had the right to begin the action during the first year.
And so, also, the court erred in its eighth instruction,2- ° ’ given for defendant, which was to the effect that if they found the defendant had, either in money or by improve-meats of value, paid rents for a time beyond that of his •being turned out by the writ, the verdict should be in his favor. Although technically correct within a year’speriod, it was misleading in its tendency to make upon the jury the impression that the payment of rents in advance, or the making of valuable improvements, gave a right of enjoyment to ■defendant to the extent of the time which the p^ments would cover. This consideration would affect damages. No advance payments can, in law or equity, be construed to extend the tenancy beyond a year.
The seventh instruction given for defendant would lead fhe jury to believe, that, throughout, the burden of proof was upon the plaintiff^ and that his evidence must be re*524quired to preponderate on all questions of fact involved. This was error prejudicial to plaintiff. His case, prima, facie, would be made by showing tenancy under him by parol (which the law would, in the absence of proof, presume to be at will), demand of possession, and refusal. He was not required to prove negatives, and show that there was no special contract, or circumstances to impede or defeat his right of possession. These were matters of defense which should, if proper pleading had been enforced, have been set up in the answer by way of defense, and sustained by proof. As to them, the burden of preponderance in the minds of the jurors was upon the defense. The error may have affected the verdict.
■
The trial began on the seventeenth of February, 1879, more than three years after the expulsion of defendant by the writ.
The court, against the objection of plaintiff, permitted defendant to give evidence of his whole damage, in the loss to his business, up to the date of the trial, which he said amounted to $5,000. This was an error. Such damages were merely speculative, and the ruling of the court must have given the jury a false idea of the true rule by which damages were to be estimated. Business profits are not so certain as to make one who deprives another of a business stand their insurer for a course of future years,.even if this had been the only house in Pine Bluff which he might have rented for the purpose. Defendant was not entitled to sit still and do nothing, and without risk of capital, and expenditure of labor and time, recover profits until the day of trial. Besides, the time extended far beyond his utmost-claim, which was a period of three years from the beginning of the lease.
The testimony should have been confined to actual damages incurred at the time.
*525The court, indeed, instructed the jury that they might give defendant such actual damages as they might find proven by the evidence before them, but that did not cure the admission of improper evidence. The jury rendered an enormous verdict of $2,000 without any proof of considerable damage of an immediate and direct nature. They could only have reached that result by estimating remote and consequential damages.
The errors indicated were properly embraced in the motion for a new trial, and it should have been granted.
Eor error in refusing, reverse the judgment and remand the cause for further proceedings consistent with this opinion.