Simonton v. Rohm

Mr. Justice Elliott delivered the opinion of the court. This was an action of unlawful detainer, commenced by R. L. and G-. L. Rohm, plaintiffs, against T. H. Simonton & Co., defendant, before a justice of the peace. It was appealed to the county court, where it was tried to a jury, resulting in a verdict and judgment for plaintiffs. The defendant appeals to this court. The objection that the individual names of the defendants as copartners are not set out in the complaint appears for the first time at the close of the plaintiffs’ evidence in the county court. This was in the nature of an objection on the ground of a defect of parties defendant, and, as such, was not seasonably made. The principal controversy at the trial related to the issues of fact made by the pleadings, as follows: The complaint avers in substance that Simonton entered the premises of plaintiffs as a monthly tenant. This averment is traversed by the answer, in which it is also averred that the defendants entered under a written lease for the period of two years. The replication denies the entry under a lease for two years. The testimony was conflicting. R. L. Rohm testified in behalf of plaintiffs, as shown by the abstract, as follows: “ Mr. Simonton came "to me some time in October, or the 1st of November, 1884, and wanted to rent the store from month to month. I told him he could have it at $35 per month. He said he would give me $30 in advance. I let him have it at $30 per month. There was no stated time.” This evidence tended to sustain the complaint. The weight of the evidence, and the credibility of the witnesses, were matters of which the jury were the proper judges. The court properly charged the jury to the effect that, if they believed from the evidence that a lease was made by plaintiffs to defendants from month to month at the rate of $30 per month, they should find for plaintiffs; also, that defendant, having affirmatively [53] pie aded a -written lease for two years, must prove the same by a fair preponderance of the evidence, in order to warrant a verdict in his favor on that ground. While some of the instructions, separately considered, are not as perfect and accurate in form as they might be, nevertheless, the charge, as a whole, fairly submitted the questions at issue for the determination of the jury upon the evidence, and the verdict should not be disturbed. The judgment of the county court is accordingly affirmed. Affirmed.