Chandler v. Hinds , 135 Wis. 43 ( 1908 )

SiebKCKER, J.

Tbe defendant contends that the court committed prejudicial error in refusing to receive in evidence his letter to the plaintiff notifying plaintiff that he was compelled to vacate the premises on account of their untenantable condition and surrender them to plaintiff. If it be assumed that the letter was competent and material evidence under the circumstances disclosed, its rejection did not operate to the prejudice of defendant. Defendant alleges that plaintiff had been informed by him, prior to the sending of this letter in October, of defendant’s claim that the premises were in an untenantable condition and that if this condition was not remedied he would be compelled to vacate them on this account. In the letter he claims to have specifically informed plaintiff of the fact that he was forced to- abandon the premises for this reason and thereby tendered them to- the plaintiff. The plaintiff denied that the premises were un-tenantable and averred that he at no time accepted defendant’s alleged surrender of the premises. An examination of the evidence discloses that the proof fails to support defendant’s claim that his attempted surrender of the lease was accepted. The facts that the defendant left the key at plaintiff’s house, that plaintiff did not return it to defendant, that plaintiff while the house was unoccupied, for the purpose of ascertaining whether the plumbing and other parts had been affected by the weather,, went into it to inspect it, and that he permitted a person to inspect it with a view to- determining its fitness for occupancy, are all readily explicable as in harmony with plaintiff’s claim- that he considered the lease in force and that the premises were at defendant’s disposal to secure a subtenant if he desired. The ■ facts and circumstances relied on by the defendant to show an actual surrender and acceptance of the premises and a consequent cancellation of the lease are wholly insufficient to support the claim. It is apparent that all of the evidence tending to show such surrender and cancellation was before the court and is insufficient to establish the claim o-f an acceptance, even if. plaintiff bad actually been in possession of defendant’s letter, as be asserts. Under these circumstances an erroneous ‘exclusion of the letter as evidence could not operate to defend-ant’s prejudice.

The further contention is made that the court erred in its refusal to receive the jury’s verdict of $105 in plaintiff’s favor and in directing them to reconsider the case. There ^vas no dispirte under the evidence that, if plaintiff was entitled to recover, the unpaid amount due on the lease was $210. Under this state of the proof it was proper for the •court to decline the verdict for plaintiff for only one half of this amount and to direct the jury to further consider the case. The court did not attempt to direct the jury how to. resolve the main issue between the parties. The effect of its instructions was that, if they found plaintiff entitled to recover, then the verdict should be the amount due for the unexpired term under the lease. The verdict first returned was plainly contrary to the instructions on the question of the •amount of damages as fixed by the undisputed facts on this point, and the court had good ground for bringing it to the •attention of the jury and giving them opportunity to correct their verdict, if they found for the plaintiff on the main issue. State ex rel. White Oak Springs v. Clementson 69 Wis. 628, 35 N. W. 56.

We find no reversible error in the record.

By the Court. — Judgment affirmed.