Herring v. . Wall ( 1918 )

Per Cueiam.

It is immaterial .whether the plaintiff recover back the $150 because paid under protest, or whether he should ratify such payment and recover the $150 which he had to pay for another building as a counterclaim. The result is the same.

The case was evidently tried on the latter theory, for the first and third issues are:

I. Are the defendants indebted to the plaintiff, and if so, in what amount ? Answer: Yes, $150.

2. Were the payments of rent for the months of January, February, and March, 1917, made by defendants to the plaintiff voluntarily? Answer: No.

3. Is the plaintiff indebted to the defendant upon his counterclaim? If so, in what amount? Answer: Yes, $150.

These issues disposed of the controversy. The second issue was irrelevant and immaterial.

The case on appeal states: “The court fully explained to the jury both the plaintiff’s and defendants’ contentions as to the defendants’ counterclaim, and that the burden upon the third issue was upon the defendants to establish their contentions by the greater weight of the evidence, and fully and correctly explained to the jury the defendants’ measure of damages, and if they answered the second issue £No,’ they should answer the third issue such amount as they find the defendants entitled to recover under the court’s change, bearing upon damages, heretofore given.”

It is a matter of no importance whether the plaintiff was barred of recovery on the counterclaim for the $150 he had paid for the use of another building while kept out of the one he had leased, or whether defendant recovered back the $150 he had paid for the building he had not had. The case was evidently tried upon the theory of a counterclaim, according to the first and third issues, and the second issue was immaterial.

The defendants should not be put to the expense and annoyance of another trial, when the justice of the case has already been attained by the verdict and judgment, whose effect is that the plaintiff shall not have rent for the three months during which he failed to furnish the defendant the building. The plaintiff was certainly responsible to the defendants to the extent of the three months rent of the building which he did not furnish, as damages, by way of counterclaim. The result is just and right, and should stand.

No error.