Derrwaldt v. Moseley

Mr. Justice Mack delivered the opinion of the court. In ah action on an appeal bond given in a forcible detainer case, the jury awarded the plaintiff $447.40 damages. The only breach assigned was the non-payment of rent during the period that the possession of the premises was withheld. It was ten and a half months before plaintiff recovered possession under a writ of restitution. The damages on this account were agreed to be $40 a month and amounted therefore to $420. Evidence of the amount of court costs expended aggregating $27.40 and of repairs made due to damage caused to the premises during the time possession was withheld, was permitted to be introduced. This was-error, for while such payments could, on a proper declaration, have been recovered, no breach of the bond in these respects had been assigned. It is, however, perfectly clear that the jury allowed nothing for the repairs. Inasmuch as a verdict for $420 could have been directed by the court, the error in admitting this testimony and in giving an instruction in relation thereto will be cured by a remittitur. Although appellant in his brief claims that the court erred in refusing to receive proper evidence, an examination of the abstract fails to disclose that any of the defendants’ evidence was excluded. If appellee will remit the excess over $420 within ten days the judgment for that amount will be affirmed; otherwise it will be reversed and remanded. Affirmed, on remittitur. Remittitur filed and judgment affirmed April' 13, 1910.