ON MOTION TO MODIFY Appellant asks that the foregoing opinion and the judgment herein conformity therewith be so modified that the trial court will be required to hear and try de novo the issue with respect to the rental value of the premises in controversy from May 3, 1900, to the time of entering the decree, and, in stating the account between appellant and respondent, Ward, to charge the latter with "whatever is received" by him from the insurance company.
The court below in its finding and decree charged respondent with rents which in the aggregate were but little more than one-half of the rental value of the premises for the period covered, as fixed by respondent himself. In doing so itRents. was manifestly in error. But appellant in his original briefs filed here expressly waived all questions as to the correctness of the trial court's holdings with respect to the rents, and sought a reversal on other grounds. He now insists, however, that his waiver was for the purpose of the appeal only, and that in as much as a further hearing is to be had in order to determine the rental value from 1900 to 1905, the question of the rental value for the entire period should be tried anew. This contention should be allowed.
With respect to the insurance the references to it in the records here are so meager and fragmentary that it is impossible to form an intelligent opinion from them as to the respective rights of the parties in relation to it. It doesInsurance. appear that after the institution of this suit a roof on the dwelling house was *Page 22 burned and the building otherwise damaged by fire, and that Ward at the time had a policy of insurance on it in his favor in the sum of $2500. There are intimations in the briefs of counsel that Ward and the insurance company were engaged in litigation over the matter, and that appellant was trying in some way to intervene therein. So that respondent has not yet received any insurance, and may never do so. But be that as it may, there is sufficient in the record to indicate that appellant has changed front since the trial. From his pleading and from one of his declarations of law, as well as from certain objections he made during the reception of the evidence, his position then seems to have been that respondent was not entitled to any allowance for permanent improvements made on the premises, because the enhanced value by reason thereof was lost through damage by fire, and that such loss, which was covered by insurance, was respondent's. The trial court seems to have accepted appellant's theory, because it refused to allow respondent for any permanent improvements, or for any of the premiums he had paid for insurance; neither did it require him to account for insurance that he might hereafter receive. This must have been entirely satisfactory to appellant, for there is no reference in his motion for a new trial to the court's action with respect to the insurance. He is not now entitled to have a new trial as to this phase of the case.
As additional taxes have accrued, and may have been paid by respondent, since the rendition of the judgment nisi, our opinion and judgment will be so modified that the trial court may hear additional evidence as to the payment of taxes byTaxes. respondent or his grantor, regardless of the time when made, as well as evidence relating to the rental value. Accordingly, the circuit court is directed to hear such further evidence as the parties may desire to offer as to the rental value of the premises from May 3, 1900, to the time of entering the decree, or the surrender of the possession by respondent if that should occur sooner, and as to the payment *Page 23 of taxes during said period, and on findings with respect to them, in addition to the findings already made on other issues, to enter a decree in accordance with the views expressed in this and in the original opinion. Small, C., concurs; Brown, C., absent.