Smith v. Wagner

The action is for unpaid rent for the use .and occupation by defendant of plaintiff’s premises. The unpaid rent sued for is seventy-five dollars for each of the months of March and April, 1892. The defendant by his answer specifically alleges “ that under an agreement made between defendant and plaintiff, the defendant used and occupied said premises for the month of November, 1891, at the rent of seventy-five dollars per month, which was paid,” and for the month of April, 1892, at the same rent, which was not paid. Thus it appears that plaintiff was entitled to a direction in his favor for seventy-five dollars for the use and occupation of his premises by defendant for the month of April, 1892; hence he should not have been nonsuited.

The judgment of nonsuit should be reversed for this reason ¡alone; however, there are others, the discussion of which are not now necessary.

Judgment reversed and new trial granted, with costs to appellant to abide the event.

McG-owh, J., concurs.

Judgment reversed and new trial granted.