Hairston v. Montgomery , 102 Miss. 364 ( 1912 )

Smith, J.,

delivered the opinion of the court.

On the 4th day of June, 1887, the Alabama Great Southern Railroad Company leased John B. Ewing, John A. Hart, and W. A. Baskette certain land for the purpose of erecting and maintaining a stockyard, which contract contained a number of mutual covenants, among them being one on the part of the railroad company as follows: “The party of the first part will furnish at all times a sufficient supply of good water, and will also provide all sidetracks necessary for the proper handling of business.” Appellee, having succeeded to the rights of the lessees in this contract, in June, 1908, leased the premises to appellants, who agreed to pay therefor the sum of forty dollars a month until the 1st day of January, 1909, and from that date to the 1st day of June, 1912, the sum of forty-five dollars per month. The contract by which this property was leased by appellee to appellants specifically provided that it should be subject to all provisions of the contract hereinbefore referred to, by which the property was leased by the railroad company to Ewing, Hart, and Baskette. Pursuant to this contract appellants entered into possession of the property, and to their surprise were compelled, in order to obtain water, to pay the bills presented by the water company which furnished it. They immediately took the matter up with the railroad company, and after considerable delay the company’s attorneys exhibited to them a contract, entered into in 1903 between appellee and the railroad company, which contract contained the following stipulations: “The said company agrees to furnish, lay, and maintain a one-inch water pipe from the Meridian Waterworks Company main to the stockyards of said company near Meridian, Mississippi, for the supply of water to said stockyards, and to make all necessary connections. Mrs. Montgomery agrees, for herself and her assigns and personal representatives, that she and they will pay the water rents or rates for all water so supplied.”

In the meantime appellants had paid, at the end of each month, the full amount of rent agreed upon; but after ascertaining the existence of this contract they deducted each month from the rent due the amount paid by them for water, and delivered to appellee a check for the difference and the receiptéd water bill. She at first declined to accept the check for this balance, claiming that she ought not to be compelled to pay for this water, and there is a dispute between her and appellants as to whether or not she finally agreed to pay for it. But, be that as it may, appellants, after ascertaining the existence of this lease contract, deducted from the amount due appellee each month for the rent of the property the amount of the water bills paid by them. The contract by which appellants leased this property contained no reference to the contract by which appellee had released the railroad company from its obligation to supply the stockyards with water. They themselves were not aware of its existence, and appellee seems from her evidence to have forgotten it for the time being.

In October, 1911, this suit was instituted to recover from appellants the amounts deducted by them each month from the rent due, which then amounted to the sum of fifty-six dollars and sixty-three cents. In instituting her suit, appellee filed a sworn statement showing the amount of rent due each month and the amount of money actually paid her each month by appellants, who thereupon filed a counterclaim and affidavit denying the correctness of appellee’s account and setting up the various amounts paid by them each Month for water, including the bills paid by them and not deducted from the rent due appellee, which amount to thirty-three dollars, and asked for judgment over against her therefor. The case, coming to the circuit court on appeal, resulted in a judgment for appellee.

The first error alleged by appellants to have been committed in the court below was the refusal of the court to exclude the evidence offered by appellee when she rested her case in chief. This evidence seems to have consisted simply of appellants’ rent contract, and the sworn account filed by appellee before the justice of the peace. This account, having been denied under oath, proved nothing; consequently, the only evidence before the court when appellee rested her case was the contract by which appellants had agreed to pay her so much each month as rent for the property. There were no facts in evidence indicating that this rent had not been paid; consequently, there was no evidence on which to predicate a verdict for appellee. The court, therefore, erred in not excluding her testimony.

This error, however, cannot now be availed of by appellants, for the reason that thereafter they introduced testimony themselves, and the case must now be decided on the whole evidence. After all the testimony for both sides had been introduced, appellants requested the court to charge the jury to find for them in the sum of thirty-three dollars, which instruction was by the court erroneously refused.

Since the contract by which appellants leased this property from appellee provided that it should be subject to all the terms of the contract by which the property was originally leased by the railroad company to. Ewing, Hart, and Baskette, they thereby assumed all of the burdens and became entitled to all of the benefits thereof. One of these benefits was that water would be furnished them by the railroad company. They were deprived of this benefit by the act of appellee herself in releasing the railroad company from its obligation to furnish water for. the stockyard; consequently, she must make good to them any damages they may have sustained by reason thereof.

Had the peremptory instruction requested by appellants been granted, it would not have been necessary for the court to have gone through the useless formality of having the jury to retire and actually find the verdict directed; but the court should simply have rendered judgment as if upon verdict found.

Since section 4919 of the Code provides, “In case the judgment, sentence, or decree of the court below be reversed, the supreme court shall render such judgment, sentence, or decree as the court below should have rendered, unless it be necessary, in consequence of its decision, that some matter of fact be ascertained, or damages be assessed by a jury, or where the matter to be determined is uncertain,” it becomes our duty, upon reversing the judgment of the court below, to render judgment here for appellants in the sum of thirty-three dollars, with legal interest thereon from the date of the various items making up this amount.

Reversed, and judgment here.

Reversed*