Everett, Wall & Co. v. Williamson

Clark, J.: The defendant excepted to the issues adopted by the Court, and to the refusal to submit those tendered by himself. We think the issues submitted by the Court were proper and better adapted to settle the controverted matters of fact raised by the pleadings. The Court certainly did not exceed the discretion allowed in framing issues. Emery v. Railroad, 102 N. C., 209. It appears, in the statement of the case, that two objections were made to the evidence and overruled. But it is not clear by whom the objections were made, and they are so stated that it is impossible to see the nature or purport of the objections. Allred v. Burns, 106 N C., 247. Besides, the party objecting seem to have acquiesced in the action of the Court, as no exception was taken to the overruling of the objections, as required by The Code, §412 (2). The defendant, after verdict, moved for a new trial for refusal to give certain instructions asked for by him, and for misdirection, which motion the Court refused. The exception to the charge in this wholesale manner, for misdirection,” without indicating in what particulars, is insufficient to point out to the Judge what should be sent up, or to put the appellee on notice of the points to be argued in this Court It is, therefore, too general to be considered. *211 McKinnon v. Morrison, 104 N. C., 354. It is otherwise as to the refusal to give the specific instructions asked. This case differs from Taylor v. Plummer, 105 N. C., 56. There, though appellant’s prayers for instructions were refused, there was “nothing to show that the appellant was dissatisfied with anything that occurred on the trial beyond the fact that he appealed” — neither exceptions to the refusal to grant the prayers for instructions, nor assignment of error therefor. Here, the appellant moved for a new trial, and assigned as error for which it should be granted, the refusal to give the instructions which had been asked by him. This was sufficiently specific to cause everything bearing on those points to be included in the case on appeal, and was fair notice to the appellee that the right of the appellant to have the instructions granted would be insisted on in this Court. The defendant requested the Court to charge as follows: 1. That there is no evidence that Williamson procured the abandonment by Quick of the lease, or in any way caused him to fail to perform any condition of the lease. This w7as immaterial, and ought not to have Men given. It was not pertinent to any issue. The question at issue was not whether Williamson had “procured the abandonment,” or “caused him to fail,” but did Quick surrender up the lease to be cancelled, and was the same accepted by Williamson? That was the question, and the defendant did not ask the Court to charge the jury that there was no evidence of this, and did not except to the charge of the Court, as given, on this point. Indeed, there was evidence to show the surrender and cancellation of the lease, and the verdict, in effect, finds that the defendant cancelled and surrendered the lease, as contended by the plaintiff. The third issue was, “Did Travis Quick comply with the covenants and stipulations contained in the lease made by him to J. II. Williamson, trustee, during the continuance of the lease?” To which the jury responded, “Yes.” *212 The defendant’s 2d, 3d and 5th prayers were— 2. That if Quick did not pay the annuity stipulated in the lease, then the jury will find third issue, No. 3. That if they believe Quick, that he did not pay annuity for 1885, they will answer third issue, No. 5. That if they believe the whole, they will answer third issue, No. In this connection, His Honor charged the jury as follows: “ The.y were told that, so far as the annuity due to Miss Cole, there was only the testimony of Williamson and Quick, each of whom said that the annuity due in 1885 had not been paid by either of them. Their attention was called to the facts generall}', and, specially, that if the covenants in the lease had been violated, the defendant had a right to retain the property in controversy.” This was a substantial compliance with the prayer. It would seem that upon this charge the jury might have well found in response to the third issue, that the stipulations of the lease had not been complied with, at least to the extent of the $48 due on the annuity for the year 1885. That the jury did not so find when thus instructed, was ground to move the Court below for a new trial, in its discretion, but is not sufficient to justify an exception for not giving an instruction which the Court, in substance, gave, though not in the identical words asked. Moreover, it must be noted that Quick testified that the land was in an improved condition when he gave it up, and Everett testified that Williamson, at that time, made no claim to the property. It may be, therefore, that upon the whole evidence the jury found that the surrender and cancellation of the lease between Quick and Williamson were absolute and unconditional, including a release of the $48 annuity due for 1885.” The other prayers were— “4. That if they believed the evidence, they will answer fifth issue, forty-five bales of cotton weighing five hundred pounds. *213 “6. That if they believe the evidence, they will find, as damages the defendant sustained, at least the value of the fifteen bales per annum for the three years of lease unperformed by Quick, and the unpaid annuity of $48.” The fifth issue was, “What amount, if any, was due defendant by T. Quick at end of lease?” There was evidence tending to show that defendant voluntarily cancelled and accepted the surrender of the lease from Quick three years before it would have expired, and rented the premises to another party for those years. It appeared from defendant’s testimony that he was careful to call some one across the street to witness that Quick had given up. Williamson’s conduct and language tend to show that he was himself anxious to have it established by a witness that Quick had surrendered, in order to rent to Broach, and he did rent to Broach that same year. The principal contention was whether the defendant accepted the surrender of the lease or not. If he did, unless there was a reservation of the right to hold Quick liable for rent thereafter, the defendant lost the right to claim damages by reason of the diminished rent paid by his new tenant. Deane v. Caldwell, 127 Mass., 242. “The effect of a surrender is to terminate the relation of landlord and tenant, with all the obligations of the parties to that relation.” Taylor’s Land. & Tenant, § 518. “So, where, before the expiration- of a lease under seal, the lessee actually surrendered possession of the premises to his lessor, who accepted the same and leased them to another, it was held to be in effect a surrender.” 1 Wash. Real Prop., p. 477, ch. 10, § 7 (6). " “ When the tenant abandons the premises, and the landlord enters, he cannot recover for rent accruing subsequently.” Schuisler v. Ames, 50 Am. Dec., 168; Terstegge v. German Benevolent Society, 47 Am. Rep., 185; Jones v. Carter, 15 Mees. & W., 718. The Court, therefore, properly declined to give these prayers, and in lieu thereof told the jury that if “the con *214 ditions of the lease had been performed by Quick, and that if the lease had been surrendered with the understanding that it should be cancelled, then the claim of the defendant could not be sustained, and that such a surrender and acceptance would end the matter,” or equivalent words. Per Curiam. No error.