Davis v. Jacoby

Gilfillan, C. J. Action for rent. Plaintiffs owned a wood and coal yard in Minneapolis, and May 15, 1890, rented the same to defendant for two years, to commence July 1, 1891, at the rent of $450 per year, quarterly in advance. The defendant paid the first quarter’s rent, and the action is for the succeeding four quarters’ rent. A tenant of plaintiffs, whose term, as we infer, expired 146 when defendant’s term commenced, appears to have continued in possession after that term. The cause was tried below on the theory that it was the plaintiffs’ duty to put defendant in possession, and if, by reason of such possession by the former tenant, defendant was unable to get actual possession, she was absolved from the obligation to pay rent, and might abandon the lease. The court, without objection from either party, submitted the case, to the jury upon that theory, and the evidence introduced on both sides shows such to have been the theory in the minds of both parties through the trial. The only request by plaintiffs for instructions to the jury was based on such theory. When parties consent to try their case upon a certain theory of what the law is, though it be erroneous, they cannot complain at the result, if it be correct according to that theory. So we need not inquire whether the theory was right or wrong, but only whether there was any error, assuming it to have been right. On the question whether the former tenant continued in possession by consent of defendant, or without such consent, and whether such possession excluded defendant from such beneficial possession as, under the lease, she was entitled to have, the evidence made a fair case for the jury; and we must assume that those facts were found in favor of the defendant, and, according to the theory of law on which the case was tried, such being the facts, she had a right to abandon the lease. The fact that she tried, ineffectually, to get possession from the former tenant, and tried, unsuccessfully, to rent the premises to him, and that pending such effort, and before she knew that plaintiffs had re-rented the premises to such former tenants, she paid to them the first quarter’s rent, was not a waiver of her right to be put in possession by them, (assuming it to have been their duty to put her in possession,) nor could any estoppel to assert that right against them be based on those facts. The defendant, against plaintiffs’ objection, was permitted to prove that about the time her term commenced she rented the premises to another at $600 a year, and that her lessee, finding that he could not get possession, threw up his lease. As plaintiffs’ theory was that, because defendant unjustifiably refused to abide by her lease, they had a right to rent the premises for such rent 147 as, with reasonable diligence, they could get, and hold defendant for the difference, it was competent for defendant to prove that they could have been rented for more than plaintiffs re-rented them at, ($25 per month,) though not to prove the terms of a particular contract. But, though the evidence may have been strictly inadmissible, we do not see how it could have influenced the minds of the jury upon the question of fact on which the case was tried, on which, exclusively, it was submitted by the court to the jury, and on which, we must presume, they decided it, and consequently, if error, it was not prejudicial. We do not see anything worth mention in any assignment of error not covered by this opinion. (Opinion published 55 N. W. Rep. 908.) Order affirmed.