2 I. The jury found in favor of the plaintiff on account of steam heating $15, and on account of rent $25, and in favor of the defendant for use of small room $1, use of cellar $4, for piping and plumbing materials $5, find as overpaid rent for January, 1894, $34.19. The questions to be considered relate to plaintiff’s claim for double rent from January 1 to 1G, 1891, and defendant’s claim for rent overpaid. The first depends upon when the lease under which the defendant occupied the premises expired. On and prior to March 14, 1893, the defendant occupied plaintiff’s premises as a tenant, and on that day they entered into an agreement in writing whereby plaintiff agreed to make certain specified improvements on the building; the defendant to continue to occupy the premises upon the same terms as in the past until the commencement of the work, and thereafter during the continuance of the work to pay $35 per month rent. The writing then provides as follows: “Said party of the first part does hereby lease to said party of the second part the above described premises for the time above mentioned, and for a term of three years, commencing as soon as said building shall be completed as above stipulated.”- Defendant claims that his occupancy was under this lease; that the building was not completed until after January 16, 1894; that his lease did not expire until three years after that date; and that therefore the plaintiff is not entitled to double rent, notwithstanding his service of notice to quit. It appears that more extensive improvements were made than those specified in the writing, and such as to necessitate the defendant’s removal from the premises during the progress of the work. Terms *146for 'his removal were agreed upon, which are not involved in this controversy. The defendant vacated in July, and reoccupied in December, 1893. Plaintiff’s claim, in his reply, is that because of these facts said written agreement was abandoned, and that it was orally agreed that the defendant “would have the right to occupy the said parts of said building for the term of three years from the time he moved into it.”' Plaintiff further states in his reply that “according to the mutual oral agreement and understanding between plaintiff and defendant the said three-years term commenced on the-first day of January, 1894,” and that therefore he held over after notice beyond the term of the lease to January 16th, and is liable for doublt rent for that period.
3 II. Appellant contends that the eighth instruction was misleading, in that it told the jury that if the rooms were completed on defendant’s return thereto in December, 1893, the three-years lease provided for in the written agreement would begin to run from the date of his return, and terminate three years thereafter. The compláint is that there was no claim or evidence that the rooms were finished when defendant took possession in December, and that the rent for December was settled for as for unfinished rooms. The court had submitted the question as to whether the written agreement was superseded by an oral agreement, and as to what should follow the finding either way on this issue. The eighth instruction is in harmony with the written agreement, and, taken in connection with the seventh, could not have misled the jury. In the sixth instruction the court said that “the plaintiff claims and contends that the defendant occupied the two storerooms below and the side or half of the room in the second story of the building, without any agreement or lease to occupy said rooms for any definite or specified time or term.” It is said that plaintiff made no such claim; that in his petition ho claimed that the tenancy expired on the first day of January, 1897. The instruction is in harmony with plaintiff’s *147first claim in liis reply, namely, tbat the oral agreement was “for tlie term of three years from the time he moved in.” The ‘‘time or term,” according to (.his claim, was not definite, as no date was fixed for its commencement or termination. True, later, in his reply, appellant says that it was orally agreed that the three-years term commenced on the first day of January, 1894.' The instructions, including No. 1 asked by the defendant and given, were called for by reason of the claims of the appellant in his reply. The contention on appellant’s claim for double rent also turned upon whether the term of three years commenced when defendant returned to the building, or when the work was completed, or on the first day of January, 1894. The instructions on this branch of the case were quite as favorable to appellant as he had a right to ask, and we discover no errors therein, prejudicial to him.
4 III. The jury allowed the defendant $37.48 on his counterclaim for overpayment of rent for the month of January, 1894. The court instructed that .if appellee’s clerk, by reason of a mistake as to the facts, paid plaintiff $108.58 rent for January, 1894, and that this was a greater sum than was then due, the defendant was entitled to recover the excess. Appellant insists that there was nothing in the pleadings or evidence to warrant this instruction. It is undisputed that, under proper pleadings and proofs, money paid by mistake may be recovered back. The amount of rent, for January, 1894, depended upon when the three-years term commenced. If it commenced when appellee retook possession in December, or on the first day of January, 1894, then defendant was liable for full rent for that month. If it did not commence until the improvements were completed, and they were not completed before January 16th, appellee was not liable for full rent until after 'that date. The jury found defendant’s possession was under the written agreement; that the improvements were not completed prior to January 16, 1894; and that therefore bv *148the writing the term of three years did not commence until January 1C, 1894. Appellee’s clerk may well have been mistaken as to the time when the tliree-years term commenced, and to have erroneously paid rent for January, 1894, as if the term had commenced at that date. We think there was evidence to warrant the instruction as to mistake.. It is true that appellee, in his counterclaim, did not in terms allege mistake, but simply that he paid $100 over and above the rent due, according to the contract, and that the plantiff neglected to give him credit therefor. After verdict defendant was permitted to amend to conform to the evidence by alleging that said payment was made by his clerk through mistake. This case was commenced in justice’s court, and it may be for this reason that the pleadings were not as complete as they should have been; but, be that as 'it may, there was no abuse of discretion in allowing the amendment, in view of the evidence tending to show mistake in the payment of that money. What we have said disposes of all the material questions presented, and leads to the conclusion that no error prejudicial to the appellant appears in the record. Affirmed.
