(dissenting).
By reason of an alleged default in the payment of rent under a lease the plaintiff-landlord served a three day notice requiring payment of the rent on the possession of the premises. After this notice was served the plaintiff brought an action for removal of the tenant pursuant to F.S. § 83.22, F.S. A., and while such suit was pending, commenced this suit for rent. The suit for possession of the premises seems to have become moot by reason of the appellee vacating the premises on March 19, 1957, and yielding possession to the appellant.
The counterclaim was for $107 for furniture, $425 for wiring the premises to which the tenant-appellee moved, and for $300 cost of moving and increased rent for the new location. These items total $832. The counterclaim claims general damages for the “wrongful action of the plaintiff in terminating the defendant’s lease” in addition to the special items of $300 and $425, supra.
Neither the pleadings nor the proof show that the plaintiff-appellant wrongfully terminated the lease. The record shows that the counterclaimant vacated the premises after being served with process in the removal of tenant suit, after consulting his attorney and pursuant to his advice. The counterclaim is insufficient to support a claim for wrongfully withholding the premises by the landlord from the tenant, hence the only item of the counterclaim sufficient to support a judgment against the plaintiff is the one for $107 for furniture manufactured.