54 Kan. 309 | Kan. | 1894
The opinion of the court was delivered by
The plaintiff leased a quarter section of land in Brown county to the defendant for two years for $900 rent, and the defendant executed four notes of $225 each therefor. The first three notes were duly paid. In November, 1889, being the fall before the lease expired, the defendant moved off the place, leaving some articles of property there. Soon afterward the plaintiff leased the premises to one Burns, who moved into the house. It appears that the corn crop had been injured by hail, and the defendant had sold the crop in the field to one Chase, who turned cattle in to eat it up. These cattle the plaintiff turned out once or twice, but it seems that Chase got all of the corn. The court, in charging the jury with reference to the defendant’s claim
“As to this part of the defendant’s counterclaim, you are instructed that if at the time Burns went into the possession of said premises the defendant had abandoned the same by leaving and going into possession of another farm, the fact of Burns going into possession after such abandonment would not be an eviction for which defendant could recover damages.”
Complaint is made of this instruction because it fails to explain what constitutes an abandonment. Inasmuch as the instruction was favorable to the plaintiff, and nothing more was asked on that subject, no error was committed.
It is further claimed that the defendant, having paid the first three notes, has waived any claim for damages on account of the plaintiff’s misrepresentations at the time the lease was made. We do not think it incumbent on the defendant to insist on deducting his damages from the first note, but that the claim was made in time when set up as a defense in this action.
Other matters relating to the introduction of evidence are discussed, but we find nothing in these worthy of mention.
It is argued that the jury found a verdict for the defendant because the hail had destroyed his crop, out of sympathy for his loss. Whether the jury were influenced by any such consideration or not, in making up their verdict, we are unable to say. It is enough for us to know that there is ample evidence to support their verdict, even if the entire claim of damages beause of eviction before the end of the term be excluded. We find no error of law in the record to warrant a reversal of the judgment. It is therefore affirmed.
