113 Neb. 12 | Neb. | 1924
The petition contains two counts, one to recover $3,805 in damages for the wrongful eviction of plaintiff from a leased theatre in Pierce, including an illegal forfeiture of the lease, and the other to recover $2,000 in damages for an assault and battery. For the purpose of conducting a motion-picture business, plaintiff leased the theatre from defendant June 24, 1921, for a period beginning July 1, 1921, and ending June 30, 1922. Plaintiff was in possession of the treatre under his lease until November 8, 1921, when the building was damaged by fire. Thereafter defendant was engaged in making repairs until January 2, 1922. At that time plaintiff visited the building to discuss with defendant the progress of repairs and the condition of the building and fixtures. Plaintiff pleads that he was then and there assaulted and violently evicted by defendant, who wrongfully declared a forfeiture of the lease. In his answer defendant admitted he owed plaintiff $46 for rent paid in advance until December 1, 1921. Defendant admitted the cancelation of the lease, but alleged that plaintiff had forfeited his rights thereunder by failure to comply with its terms. Defendant also denied the unlawful assault charged, and pleaded that he used only such force as was necessary to defend and protect himself. The reply was a general denial. Upon trial of the issues raised by the pleadings, the jury rendered a verdict in favor of plaintiff on the first count for $532.12 and on the second count for $1. Defendant has appealed.
The verdict included in effect a finding that defendant waived any forfeiture which he had a right to- declare under the terms of the lease. This issue was fairly submitted to the jury and their finding thereon is sustained by the evidence. In the verdict, however, the jury allowed an item
Affirmed.