Buerger v. Mabry

BROWN, J. The issue sought to be presented by the plaintiff’s special replications 2 and 3 to the defendant’s plea of recoupment was that subsequent to the execution of the lease, by agreement between the parties, the rent was reduced $5 per month, and that this reduction was made in lieu of the plaintiff’s obligation to repair; and although a demurrer was sustained to these replications, it clearly appears from the record that the case was tried as though this was an issue in the case. Both parties introduced evidence touching this subsequent agreement, and at the instance of appellant the court instructed the jury as follows: “I charge you, gentlemen of the jury, that-if you are reasonably satisfied from the evidence that the reduction of $5 per month in the rent was made in lieu of repairs, you must find for plaintiff.” (1) The parties having tried the case on the theory that this was an issue in the case, and this instruction to the jury having been given by the court at appellant’s instance, he is in no position to complain that the issue was eliminated by the ruling of the court on the demurrers. — L. & N. R. R. Co. v. Holland, 173 Ala. 675, 55 South. 1001; Travis, Adm’r, v. Sloss-Sheffield S. & I. Co., 162 Ala. 605, 50 South. 108; Tygh v. Dolan, 95 Ala. 271, 10 South. 837. In short, the issue was as effectually submitted to the jury by this charge as it could have been had the demurrer been overruled; and the court, by giving this charge at appellant’s request, cured the error, if error it was, resulting from sustaining the demurrer to the replications.— Friedman Bros. v. Cullman Building & Loan Association, 124 Ala. 344, 27 South. 332. (2-4) The evidence tended to show that contemporaneously with the execution and delivery of the lease, the plaintiff made *244 an agreement to repair, the lease and the agreement to repair being delivered at the same time. On this evidence, the question of the merger of a prior agreement into one subsequently made between the same parties, and covering the same subject-matter, is not here presented. Parol evidence was admissible to show the circumstances under which the contract was made and the subject-matter to which the parties referred. — Reynolds v. Lawrence, 147 Ala. 219, 40 South. 576, 119 Am. St. Rep. 78; Smith v. Fields, 79 Ala. 335. And it was permissible for the defendant, bn cross-examination of the plaintiff, to prove the execution of the agreement to repair by the plaintiff. — Hayes v. Banks, Adm’r, 132 Ala. 354, 31 South. 464. The paper signed by the plaintiff, after its execution was proven, was properly admitted as evidence of the agreement to repair. (5-7) The plaintiff’s objection to the question, “What caused its trouble?” propounded to the witness A. P. Mabry, and referring to the rusty condition of the cookstove, was properly overruled. — Stouts Mountain Coal & Coke Co. v. Tedder, 189 Ala. 637, 66 South. 619. The evidence tended to show that the defendant paid $12 for the cookstove, that it was new when it was placed in the rented house, and that it was damaged by water that leaked through the roof to such extent that it had been discarded. On this evidence, it was a question for the jury as to what, if any, damage the defendant had sustained. Where no market value is shown for secondhand household goods, the actual value of such goods to the owner (excluding fanciful or sentimental value), furnishes the rule for the admeasurement of damages. — Cooney v. Pullman Palace Car Co., 121 Ala. 368, 25 South. 712, 53 L. R. A. 690; State v. Stoddard, 13 Ala. App. 560, 69 South. 980. (8) There was evidence tending to support the claim of the plaintiff as embodied in his complaint; and there was also evidence tending to support the defendant’s special pleas. The appellant, therefore, was not entitled to the affirmative charge. This disposes of all assignments of error on the record, and, no reversible error appearing, the judgment is affirmed. Affirmed.