Clemens v. Murphy

Holmes, Judge, delivered the opinion of the court. Two grounds of error are relied upon by the appellant for [128] a reversal of the judgment. The one is the exclusion of testimony offered in support of his counter-claim. In the first place, this counter-claim is pleaded in an insufficient manner; in the second place, the evidence proposed to be offered does not appear to have been sufficient to establish any counter-claim at all.' Under the lease, the appellant had the right to remove his buildings erected on the premises, at the end of his term, provided that all rents had been paid and all covenants complied with. The lessee offered to pay up all rents and taxes, and quit possession, if the lessor would allow him to remove his improvements ; and it was proposed to prove that the lessor refused to accept this offer. This was not enough. He should have paid what was due and kept his covenants, and then he might have removed his buildings without any permission from the lessor; or if the lessor had interfered and converted the property to his own use, it is very probable that an action might have been maintained against him for their value. However this may be, we are of the opinion that there was no error in excluding this testimony. The other error complained of consists in the refusal of an instruction to the effect that the record of a former suit between the same parties was conclusive of the matter of the two months’ rent claimed in this suit for October and November. The record did not show that this same subject matter had been passed upon and adjudicated in that suit. The rent for these months does not appear to have been included in the account on which that action was founded, and there was some evidence on the part of the respondent tending to show that it had been omitted by mistake, and had not in fact been passed upon by the jury in that case. We think the instructions which were given by the court were correct, and that there was no error in refusing those asked for by the appellant. As to whether or not the lessee may have a cause of action against the lessor for the value of his buildings, if they have been converted to his use, when he shall have fully performed [129] the conditions of the lease on his own part, we do not undertake now to give any opinion. The judgment here appears to have been given for the right party, and will be affirmed. The other judges concur.