124 P. 66 | Okla. | 1912
Plaintiff in error, hereinafter called plaintiff, brought this suit in the lower court against defendants in error, hereinafter called defendants, to recover judgment in the sum of $390 as damages for breach of a rental contract. Plaintiff alleges in its petition that on the 14th day of January, 1907, it leased to defendants a certain brick building for a period of one year to begin on the 1st day of September, 1907, and to continue until the 31st day of August, 1908, at a rental of $65 per month. It alleges that defendants moved into the building and occupied same under the contract and paid rents thereon for the period of six months, when defendants, without the consent and over objection of plaintiff, abandoned the building and refused to pay further rents thereon; that plaintiff was unable *38 thereafter to rent the building during the term of defendants' contract, and therefore lost the rental value of said building for the period of six months, which, under the contract, was $65 per month.
Defendants' answer admits they made a contract with plaintiff for the period of one year, but alleges that the same began in the month of January, 1907, and alleges that they occupied same for the full period of one year, beginning in said month of January, and paid the rents thereon. The contract between them was not reduced to writing, and there is considerable conflict in the evidence as to the provisions of the contract as to when the term thereunder began and ended.
A trial to a jury resulted in a verdict for plaintiff for the amount sued for. A motion for a new trial by defendants was sustained by the trial court, and it is that action of the court only of which complaint is made in this proceeding.
The condition upon which this court will reverse an order of a trial court granting a new trial is well settled to be that such ruling will not be set aside unless it can be seen beyond all reasonable doubt that the trial court has manifestly and materially erred with respect to some pure, simple, and unmixed question of law, and that except for such error the ruling of the trial court would not have been so made. Jacobs v. City ofPerry,
Defendants' motion for a new trial sets up several grounds. We are not informed by the record upon which ground the trial court sustained the motion. The first ground alleged in the motion is that the verdict is contrary to the law and the evidence. For aught we know, it is upon this ground that the new trial was granted. It does not present an unmixed question of law. The evidence was conflicting, and, if we were of the opinion that the *39
preponderance thereof supported the verdict of the jury, still that would not be sufficient reason to require a reversal of the order granting a new trial. Duncan v. McAlester-ChoctawCoal Co., supra; Atyeo v. Kelsey,
Since we are not able to say from the record before us that the trial court materially erred with respect to some pure, simple, and unmixed question of law in granting the new trial, the order appealed from should be sustained, and it is so ordered.
TURNER, C. J., and WILLIAMS, KANE, and DUNN, JJ., concur. *40