14 Mont. 361 | Mont. | 1894
The object of this action is to recover rent alleged to be due from defendants to plaintiff under the terms of a lease of certain premises in the city of Helena, which demand is for rent accrued after defendants vacated said premises. The instrument on which plaintiff relies as a lease, set forth in his complaint, discloses a contract between plaintiff and defendants, whereby plaintiff agreed to erect a certain described building on one-half of lot 31, block 2, of said city, to be completed and ready for occupation by defendants on or
Defendants, by answer, admit the execution of said contract, but allege that the same never became effectual, because said building was never completed as provided thereby. That defendants went into said building under another and entirely different contract, entered into with plaintiff about the time said building was completed; that is, a parol contract, whereby defendants agreed with plaintiff to lease said building from month to month, at a rent of fifty-two dollars and fifty cents per month, and not otherwise. And defendants, for further defense, allege that said building, by reason of the acts and omissions of plaintiff, became untenantable, whereby defendants’ eviction therefrom was caused by plaintiff, in that no substantial roof was put upon said building, so as to prevent leakage, and by reason thereof great quantities of water came into said building upon defendants’ goods, furniture, and fixtures, whereby the same were damaged, and defendants’ business greatly interrupted. That plaintiff was frequently notified of such defective condition of said roof, the leakage, and the injury to defendants’ goods and business therefrom; but that plaintiff neglected to repair the roof of said building to prevent such leakage. That the lower part of said building occupied by said defendants was by them used for the purpose of conducting a butcher’s business therein, and the upper part of said building so leased by defendants was used for residence purposes by one of the defendants and his family. That plaintiff had control of other parts of the second story of said building, and occupied apartments therein. That said upper story was so arranged that it was necessary for both plaintiff and those residing therein by his permission, and defendants and his family, to use a hallway, hydrant, and sink in common, in their occupation thereof. That plaintiff’s conduct in his use and occupation of that portion of the building, and the
By replication plaintiff put in issue all the affirmative allegations of the answer, and on the issues thus raised by the pleadings the trial ensued, whereat both parties introduced testimony in support of their contention; but at the close of the introduction of testimony the court, having excluded certain testimony offered on the part of defendants, directed the jury, on motion of plaintiff, to return a verdict in his favor, which the jury did accordingly.
The assignments of error which we deem necessary to examine relate to the action of the trial court in striking out certain testimony introduced by defendants, and also excluding other evidence by them offered, and peremptorily directing the jury to return their verdict for plaintiff; which assignments will now be considered.
Upon the trial, plaintiff introduced evidence tending to support the allegations of the complaint, and, plaintiff having rested, defendants introduced evidence on their part, tending to support their defense that said original contract providing for the erection of said buildiug by plaintiff, and the lease thereof by defendants for the period of five years, was abandoned by reason of the failure of plaintiff to erect and com
But the more remote cause of irrelevancy suggested is that defendants’ two defenses set up are inconsistent. Even this would not justify the ruling of the court which denied defendants the benefit of both defenses by directing the jury to return a verdict for plaintiff, without consideration of any part of the defense. The suggestion that the defense affirming that defendants were, in effect, evicted from said premises by the alleged misconduct of plaintiff is inconsistent with the other alleged defenses to the effect that defendants had only leased from month to month, and therefore defendants should not be allowed to prove both defenses, cannot be maintained. Defendants may allege as many defenses as they have. Two are alleged in this case. It may well have been considered by defendants that the court and jury might not adopt their contention that they went into said premises under an agreement to rent from month to month, independently of the original contract. If the court and jury interpreted the facts and circumstances against defendants on that defense, and held that defendants were committed to a lease for five years, can it be maintained that they could not show facts of which plaintiff was the author, amounting to an eviction of defendants during
Judgment and order reversed, and cause remanded for new trial.
jReversed.