Gardner v. Cookson

THE COURT.

This is an appeal from a judgment rendered for the defendant for costs.

The plaintiffs’ complaint alleged the execution of a lease dated December 26, 1924, whereby the plaintiffs let to the defendant a 331-acre ranch and an additional 160-acre tract for a period of three years at a monthly rental of $100 per month payable $400 on the first of June of each year and $800 on the first of November of each year; that the defendant took possession of the leased premises and remained thereon until October 15, 1926, when without the plaintiffs’ consent he abandoned possession; that the plaintiffs reentered the premises on April 15, 1927; that the defendant has not paid the installment of rent due November 1, 1926, in the sum of $800, nor any rent for the period from January 1 to April 15, 1927, amounting to $350. The complaint contained statements of further causes of action wherein it was alleged that the defendant caused damage to the leased premises and violated the covenants and terms of the lease, all to the plaintiffs’ loss and damage in the total sum of $7,657.87. The defendant filed his answer containing certain admissions, averments and denials, and his cross-complaint in several counts wherein he set up fraud and deceit on the part of the plaintiffs in the making of certain false representations as an inducement to the execution of certain leases on the part of the defendant and which, if supported by the evidence, it may be conceded constitute actionable fraud. The defendant alleged injury and damage aggregating $9,000. After a trial on the issues the jury brought in its verdict for the defendant without specifying any amount of damages and judgment for the defendant for costs was entered thereon.

On this appeal the plaintiffs contend that the court erred in overruling their demurrer to the defendant’s second amended cross-complaint for the reason that the defendant should have elected either to rescind the lease or to stand on the lease and sue for damages. But the court instructed the jury that the “defendant in addition to his answer to plaintiff’s complaint has filed a plea by way of recoupment. . . . And in this the court instructs you that this is a 'defen

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sive relief’ whereby the alleged fraud is set up by way of defense to defeat the action brought to enforce an apparent obligation or liability. The alleged fraud is given in evidence as a defense and an answer to the whole demand or in abatement of the damages according to the circumstances of the case. This defense, however, the defendant must prove to your satisfaction by a preponderance of evidence under the following rules”: and the court then proceeded properly tb advise the jury thereon. That the court and the jury both so understood the purpose of the defendant’s cross-complaint is apparent from these instructions and from the jury’s verdict and is in accordance with the principles enunciated in