The appellee says that two errors appear in our decision of this case, the opinion therein appearing in 31 So.2d 116, (1) a cross appeal taken by the appellee was left undecided, and (2) the five per cent damages awarded the appellee under Section 1971, Code 1942, should be calculated on the value of the property and not on the value of the interest therein in controversy.
(1) The matter complained of in the cross appeal was not presented to the Court below. No written instructions were given the jury at the trial, but at the close of the evidence counsel for the appellee requested the court orally "to peremptorily direct the jury to find a verdict in his favor for the possession of the building, for the value shown in the evidence, and for the rentals due as fixed by law," and the Court so directed the jury. Without further instruction the jury returned the following verdict:
"We, the jury, find that the Plaintiff is entitled to the possession of the premises sued for, said premises being *Page 386 of the value of $40,000.00, and the sum of $1500.00 by way of single rent from May 1st, to and including the month of October, 1946, and $941.66 additionally by way of double rent from July 1st to date, or a total of $2,441.66 as rent for said premises."
The record does not disclose that any objection was made by the appellee to this verdict nor that any ruling was sought by him before it was rendered relating to the time of the beginning of such rent. The appellee, therefore, presented us by his cross appeal with no ruling of the Court below on which we could have acted, and therefore with nothing to decide.
(2) Construing Section 1971 and 1972, Code 1942, strictly, as we should, Canal Bank Trust Co. v. Brewer, 147 Miss. 885,113 So. 552, 114 So. 127, and Hawkins Hardware Co. v. Crews,176 Miss. 434, 169 So. 767, we must hold that the damages provided by these statutes must be calculated on the value of the property if the entire interest therein is in controversy, but if not on the interest which is in controversy. The entire interest in the property here is not in controversy but only a right to hold it under a lease for a stipulated period. McKeithen et al. v. Bush,201 Miss. 664, 30 So.2d 83. Cf. Hodges v. Jones, 197 Miss. 107, 116, 19 So.2d 518, 917.
Overruled.