Per Curiam.
(1).
This is an action of account, on the trial of which before a jury as to whether the defendant was liable to
account to the plaintiffs, the question, of course, arose as to whether the defendant had received the rents or had had the enjoyment of the premises so as to make her liable to account. It was contended by her that her husband, George H. Vaughan, was the tenant, and-had had the use and occupation of the premises, and not herself, and evidence was offered tending to support her contention. The presiding justice ruled that, as a matter of law, the defendant was the tenant of the premises as to which an account was sought, and directed the jury to find a verdict that the plaintiff was entitled to have an account of the use and profits of the property set out in the declaration as charged therein, and refused to charge the jury, as requested by the defendant, as follows : “You are to consider the evidence and determine whether Mr. or Mrs. Vaughan was tenant of the premises ; and if you find Mr. Vaughan was the tenant, then your verdict should be for the defendant.” The defendant duly excepted, and now petitions for a new trial on account of errors in said rulings.
William P. Sheffield, Jr.,
for plaintiff.
Clark Burdick,
for defendant.
(2)
We think the presiding j ustice erred in directing the verdict, as the question raised was for the jury and not for the court ; and the request to charge as above set forth was proper, and should have been granted. We think the second request to charge, viz.: “If the rental for the premises was fixed in November, 1901, at $250 by John H. Crosby and Mr. Vaughan, then your verdict should be for the defendant,” was properly refused, as it was not sufficiently limited as to whom Mr. Vaughan was acting for, whether for himself or for his wife as her agent, it being claimed by the plaintiffs that any action by Mr. Vaughan was for and on behalf of his wife.
A new trial is granted, and the case is remitted to the Common Pleas Division for further proceedings.