73 So. 135 | Ala. Ct. App. | 1916
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Action by August Buerger against Mrs. Sarah Mabry. From a judgment for defendant, plaintiff appeals. Affirmed.
The complaint claims for rent under a written lease, which is specified. The pleas set up that plaintiff agreed to make certain repairs upon the house, and because of the failure to repair, defendant's goods, household effects and furniture, were injured in the sum of $300, which she offers to recoup, and claims damages for. The third plea sets up plaintiff's failure to make such repairs, and because of such failure the house leaked and damaged defendant's goods in the sum of $300, which she offers to recoup. The fouth plea sets out the enumerations in writing of the repairs which plaintiff agreed to make, plaintiff's failure to make them, and the consequent damages as set out in the other pleas. The tenant's agreement is set out, and contains no agreement to repair. The landlord's agreement is also set out, and appears to have been signed on the same day as the lease was *243 signed. The replication set up an agreement between defendant and plaintiff that so long as all the said repairs were not made, there would be a reduction in lieu of said repairs of $5 per month in the rent, commencing with the month of January, and that after allowing defendant reduction therefor and a credit, there was due from defendant to plaintiff under said lease at the time this suit was filed the sum of $120. The other facts sufficiently appear. The issue sought to be presented by the plaintiff's special replications 2 and 3 to the defendant's plea of recoupment was that subsequent to the execution of the lease, by agreement between the parties, the rent was reduced $5 per month, and that this reduction was made in lieu of the plaintiff's obligation to repair; and although a demurrer was sustained to these replications, it clearly appears from the record that the case was tried as though this was an issue in the case. Both parties introduced evidence touching this subsequent agreement, and at the instance of appellant the court instructed the jury as follows: "I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that the reduction of $5 per month in the rent was made in lieu of repairs, you must find for plaintiff."
(1) The parties having tried the case on the theory that this was an issue in the case, and this instruction to the jury having been given by the court at appellant's instance, he is in no position to complain that the issue was eliminated by the ruling of the court on the demurrers — L. N. R. R. Co. v.Holland,
(2-4) The evidence tended to show that contemporaneously with the execution and delivery of the lease, the plaintiff made *244
an agreement to repair, the lease and the agreement to repair being delivered at the same time. On this evidence, the question of the merger of a prior agreement into one subsequently made between the same parties, and covering the same subject-matter, is not here presented. Parol evidence was admissible to show the circumstances under which the contract was made and the subject-matter to which the parties referred. — Reynolds v. Lawrence,
(5-7) The plaintiff's objection to the question, "What caused its trouble?" propounded to the witness A.P. Mabry, and referring to the rusty condition of the cookstove, was properly overruled. — Stouts Mountain Coal Coke Co. v. Tedder,
(8) There was evidence tending to support the claim of the plaintiff as embodied in his complaint; and there was also evidence tending to support the defendant's special pleas. The appellant, therefore, was not entitled to the affirmative charge.
This disposes of all assignments of error on the record, and, no reversible error appearing, the judgment is affirmed.
Affirmed. *245
