McBride v. Daniels

92 Pa. 332 | Pa. | 1880

Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

This contention is between a landlord and a tenant. The plaintiff in error let to the defendant a farm for the term of two years. The latter, inter alia, agreed “ to take all proper care of said premises, the same as a careful and prudent farmer should of his own property, and return the same at the end of said lease in as good condition as the same is received, except natural wear -and unavoidable accidents.” Also at the end of the term “ to leave as many acres seeded down as there now ” are. A clause in the lease gave the landlord the privilege of buying the hay and fodder remaining on the premises at the end of the term, at a discount of twenty-five per cent, below the market price thereof. Under this privilege he bought, and this suit was brought by the defendant in error to recover the price thereof and for labor, repairs and damages. The pleas were non assumpsit, payment with leave, &c., and set-off. The first assignment is to the rejection of evidence offered to prove that the defendant in error permitted Canada thistles to grow and go to seed on the farm, and by reason thereof the farm was greatly damaged. The second assignment is to the rejection of evidence offered to prove that he pastured the meadow with sheep and thereby destroyed it, and substantially that he did not leave seeded down as many acres as required by his contract.

In deciding the motion for a new trial the court rather concedes there may have been error in rejecting the evidence as a set-off, and therefore awarded a new trial on payment of costs by the plaintiff in error. The latter refused it on the terms offered. When the court is of opinion that the damages found by a jury are excessive it may grant a new trial unless a portion of the damages shall be remitted by the party in whose favor they were found, but we know of no authority empowering the court to impose costs on the party asking for a new trial as a condition for granting it, if the court is satisfied it committed an error in the trial to his prejudice. The refusal of the court to grant a new trial cannot be reviewed here. We have referred to this action of the court only because it was cited by the counsel for the defendant in error, as a correction by the court of its own error, which the plaintiff in error refused to accept. It is not entitled to any weight in deciding the questions before us.

It is well known that the growth of any considerable number of Canada thistles on a farm may be very pernicious. Their tendency is to destroy all other vegetation. The offer here was to show that the tenant suffered them to grow and go to seed on the farm to such an extent that it was thereby greatly damaged. If this be so, then it is a question for the jury under the evidence to find whether in so permitting it to go to seed the defendant in error took “the same care of the premises as a careful and prudent farmer should of his own property.” If he did not he is liable in damages. The same rule in principle applies in case he pastured the meadow with sheep to such an extent as to destroy it. He was bound to the exercise of good husbandry. That permitted a reasonable use of the meadow. If he disregarded his agreement to take the same care a careful and prudent farmer should of his own farm, by either causing it to be fed too close or at an unsuitable time so as to substantially injure it, or if he did not leave as many acres in grass as there were when he took possession whereby the plaintiff in error was injured, each of these presents a proper subject for damages. Evidence of all these claims are admissible under the pleadings. The learned judge therefore erred in rejecting the evidence offered.

Judgment reversed, and a venire facías de novo awarded.