Appellant instituted this suit for a writ of injunction to restrain appellee from interfering with workmen employed to remodel the front of a stone building owned by appellant and at the time occupied by appellee as a tenant. The writ issued as prayed for. Appellant completed the alteration and rebuilding undertaken, *Page 249 after which the case was tried before a jury in the County Court upon issues presented by appellee in a plea of reconvention, the court peremptorily instructing the jury that appellant had failed in establishing his suit for injunction. Appellee in reconvention, among other things, answered that his occupancy of the building was by virtue of a written lease, attached as an exhibit to his answer, and that, by the terms thereof, appellant was not given the right to interfere with appellee's possession in the manner he did; that by tearing down the front of the building, and rebuilding the same, his business as a retail liquor dealer had been injured, in that dust and dirt had entered, customers had been driven and kept therefrom, and other resulting injury done. By supplemental petition appellant alleged that appellee had entered under a verbal lease, by the terms of which the right to change the front of the building, as done, had been reserved, and that the written contract introduced and relied upon by appellee had been written with the purpose of merely embodying the oral contract in writing, and that the reservation mentioned had been inadvertently omitted by the scrivener. The trial resulted in a verdict and judgment for appellee on his cross-action in the sum of one hundred and fifty dollars, and hence this appeal.
Upon the trial appellant offered the testimony of B. C. Cage, to the effect that, as agent for appellant, he had verbally leased the building in controversy to appellee, and that in said verbal lease he reserved the right to reconstruct the front of the building involved in the controversy during the pendency of the term, which was for one year. He also sought to show by the same witness, in substance, that at the time appellee entered the premises he did so under said verbal lease, and accepted a written receipt for one month's rent then by him paid, in which receipt appeared the stipulation that appellant reserved the right to reconstruct the front of the building in controversy during the pendency of appellant's lease. Appellant also sought to show by M. L. Jackson, who was the scrivener who wrote the written lease relied on by appellee, that, previous to the execution thereof and preliminary thereto, appellee exhibited to the said witness the receipt mentioned above, and then declared that it was "a good enough contract for him." All of the foregoing testimony offered by appellant was rejected by the court on the ground urged by appellee, that the written contract excluded all previous negotiations and contracts between the parties. We think that, in so doing, the court was led into error. It seems undisputed that appellee entered under parol contract of lease for the term of one year. It is not contended that the written contract embodies different terms in respects other than the feature of the reservation relied upon by appellant, and it seems to us clear that the proof tends to show that the written contract was made with the purpose merely of putting the contract previously made into more enduring form, and that the evidence offered by appellant, as above detailed, plainly tended to support the issue presented by him in his pleading, that the reservation made in the parol contract was omitted from the written contract by inadvertence or mistake of the person who reduced it to writing.
In view of another trial, we suggest that the jury be not again permitted, as was done in the third paragraph of the court's charge, to assess *Page 250 damages, at any sum not to exceed the amount alleged that they might find "in their discretion."
But, for the errors discussed, the judgment is reversed, and the cause remanded for a new trial.
Reversed and remanded.