Nichol v. McDonald

Riddick, J., (after stating the facts). This is an action by a landlord against his tenant, to collect an installment of past-due rent. The defense of .the tenant was that the landlord had previously evicted him from a material portion of the demised land. Though it is- doubtful whether many-of the questions which counsel for the appellant have argued -in -their- brief- are properly presented by the record, yet we are relieved-from discussing-that- question, for there is one error which appears on -the face of the record which requiress.a.,reversal of .the-judgment. ■ The findings of the jury were not sufficient to authorize the judgment of the court. It will be noticed, from an inspection of the interrogatories and the answers thereto, that the jury found that the tenant had consented to a sale of the land. They do not expressly say that he consented to a sale of the portion of the land sold by the landlord. The fact that the tenant had agreed that the landlord might sell the whole of the demised tract'would not necessarily show that he had consented that the landlord should sell any portion of it and put the vendee in possession.' The tenant had; under the contract read in evidence^ the option to purchase the land-at'any'time during the continuance of his lease-at a. certain price-per acre, If the whole ■tract was sold at a price greater than-that named in the option, the excess would go, as a profit, to'the -tenant. Under such a contract the tenant might be willing for the whole trátít to be ’sold, and yet be unwilling to consent to a sale.of a portion only.. The question propounded to the jury should not have been whether he consented to a sale of the whole tract, but whétlier he conéented to the sale of the part sold, and. of which he .claimed to have been dispossessed. But, conceding that the presiding judge, in asking the jury whether the tenant agreed tó a sale of the land; referred to'-the 4 acres -sold, and admitting that the tenant consented to the sale of this part of the tract, and to its possession by the vendee, still in that event he would be entitled to'a reduction of his rent to that extent. ’It would be Very unjust to permit-a landlord to collect rent- from' a tenant for that part of the land which he had sold 'and placed in possession of another. But the question of the rental value of these 4 acres of land sold by the landlord, or its effect upon, the rental value of the remainder of the tract, was not submitted to the jury, nor determined by them, and there is nothing-in the evidence from which we can determine it with any degree bf certainty. The judgment must therefore be reversed, and a new trial ordered, for the reason that the findings of the jury were not sufficient to authorize the judgment.