Nelson v. Thompson

• Decision Date: 09 April 1877
• Citation: 23 Minn. 508
• Parties: A. D. NELSON <I>vs.</I> U. J. THOMPSON and others.
• Court: Minnesota Supreme Court

23 Minn. 508

A. D. NELSONvs.

U. J. THOMPSON and others.

Supreme Court of Minnesota.

April 9, 1877.

By lease under seal the plaintiff demised to defendants a dwelling-house in St. Paul, for the term of one year from

June 1, 1874, at the rent of $40 per month, which the defendants covenanted to pay monthly, in advance. The plaintiff brought this action in the court of common pleas of Ramsey county, to recover the rent for the months of February, March, and April, 1875, alleging that no part thereof had been paid except the sum of $13.33 paid on account of the rent for February, and $30 paid on account of rent for April. Among other defences the defendants pleaded an agreement made in October, 1874, with plaintiff's agent, authorizing the defendants to terminate the lease on ten days' notice, the giving of such notice on January 31, 1875, and the consequent termination of the lease on February 10, 1875, when they delivered up the premises, paying the rent in full to that date. At the trial before Brill, J., the defendants introduced evidence tending to prove this agreement, and counter-evidence was introduced by plaintiff; but the court instructed the jury that this defence had not been made out. Evidence was introduced by both plaintiff and defendants upon the question whether the defendants had, on February 10, 1875, surrendered the lease to the plaintiff's agent, and such surrender had been accepted by him. It was not disputed that, on that day, the defendants vacated the premises, delivered the key to plaintiff's agent, and paid $20, the balance of rent due for January, and $13.33 besides. The evidence as to what took place between the parties at that time is stated in the opinion. It also appeared that the premises remained vacant until April 1st, when they were let by plaintiff's agent to one Lewis, at the rent of $30 per month. On the only issue left to them — that as to the alleged surrender on February 10th — the jury found for the defendants. A motion for a new trial was granted by Brill and Simons, JJ., on the ground that the verdict was against evidence, and that the court erred in instructing the jury that defendants were released in case the key was left with plaintiff's agent, and possession of the premises taken by him, without any understanding between them that defendants should continue liable for the rent, and were not to be released. From the order granting a new trial the defendants appeal.

Mead & Thompson, for appellants.

O'Brien & Eller, for respondent.

CORNELL, J.

The point of alleged variance between the complaint and the evidence is one that, had it been made in the district court, might, and in the rightful exercise of its discretion ought, upon motion, to have been obviated. It comes too late, therefore, to be considered on this appeal. Babcock v. Sanborn, 3 Minn. 141; Washburn v. Winslow, 16 Minn. 33.

Under the testimony two separate and distinct issues were raised, the determination of either of which in defendants' favor would, as it is claimed, have entitled them to a verdict upon the whole case. Upon the submission of the case to the jury the court, in its charge, confined them to the consideration of one of these issues alone, and the evidence applicable thereto, thereby wholly withdrawing the other from their consideration. Under this ruling a verdict was rendered in favor of the defendants, which, on motion of plaintiff, was set aside because of an erroneous instruction in reference to the issue thus submitted to and passed upon by the jury. Conceding the correctness of the decision upon the motion on this point, it is contended that the verdict ought not...