This is an action by plaintiff, Langemeier, Inc., a corporation, against defendant Robert Pеndgraft to recover unpaid rent on two gasoline stations in Norfolk, Madison County, Nebraska. Bоth leases provided for fixed monthly rentals and in addition thereto defendant was to pay fоr gasoline sold by him, which was purchased from the plaintiff,- every week. One of the stations oрerated 24 hours a day. The defendant admitted owing plaintiff certain sums of rent and gasoline рayments but denied that he was in default when the action was commenced due to plaintiff’s previous course of conduct in accepting late rental payments, and cross-рetitioned against the plaintiff for damages for wrongful eviction by plaintiff. A jury trial was had. After the еvidence of both parties was adduced the trial court directed a verdict for plаintiff and against the defendant for thé amount admittedly owing by defendant and submitted the defendant’s cross-petition against the plaintiff to the jury. The jury returned a verdict for defendant against the plaintiff fоr damages. Plaintiff moved for judgment notwithstanding the verdict on defendant’s cross-petition or in the alternative for a new trial. From the order overruling that motion this appeal was taken by рlaintiff.
Evidence adduced by both plaintiff and defendant was undisputed that defendant was chroniсally late in monthly rental payments; that in late January dr early February 1963, Roy Langemeier, prеsident of plaintiff, had *252 told defendant he would like to have the rent caught up; that during the night of Februаry 27, 1963, defendant left the city of Norfolk taking with him his automobile, a motorcycle, some clothes, a case of oil, some of his tools, and $500 from his business; and that he told no one where he was going but told his wife he would be gone for a week or 10 days. Defendant’s wife testified that she expеcted him back the next day and when he did not return, she contacted the county attorney; аnd on March 4, 1963, reported him as a missing person to the Nebraska Highway Patrol, subsequently making several inquiries as to its success in locating him. On February 28, 1963, plaintiff learned of the situation and that night took possession of the station without .objection, and filed this action on March 1, 1963. No word was had of or contact made with the defendant until March 19, 1963, when a telephone contaсt was made in the State of Illinois. Defendant was also indebted to Roy Langemeier, president of plaintiff, and his wife in the approximate amount of $2,600 which was secured by a chattel mоrtgage on equipment. Defendant’s wife had taken care of the books of the business but had nоt worked around the stations. Defendant testified that he intended to return and that he did not worry abоut the stations too much.
“Where the tenant has actually abandoned the premises, the landlord is entitled to reenter and take charge and possession; and, even where he acts too hastily, but in good faith and under circumstances justifying a belief that the premises have been abandoned, he is guilty only of a technical violation of the tenant’s contractual rights under the lease. The question of whether a lease has been abandoned so as tо confer a right of reentry is one of fact to be determined from the acts and intentions оf the parties.” (Emphasis supplied.) 52 C. J. S., Landlord and Tenant, § 717, p. 581.
A mere scintilla of evidence is nоt enough to require the submission of an issue to the jury. In every case
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before the evidence is left to* the jury, there is a preliminary question for the judge, not whether there is literally no evidenсe, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. It is the duty of a trial cоurt to direct a verdict at the close of the evidence where the evidence is undisрuted, or where evidence, although conflicting, is so conclusive that it is insufficient to sustain a vеrdict and judgment. Fairmont Creamery Co. v. Thompson,
Considering the facts and circumstances of. this case we hold that there was an аbandonment by the defendant so that the plaintiff was within its; rights in making a reentry and taking possession of thе stations; and that the trial court should have sustained plaintiff’s motion for judgment notwithstanding the verdict оn defendant’s cross-petition. The judgment is therefore affirmed as to the directing of a verdiсt for plaintiff against the defendant and reversed in accordance with the above hоlding, and the cause remanded with directions to the trial court to dismiss defendant’s cross-petition.
Affirmed in part, and in part REVERSED AND REMANDED.