Malone v. Scott

Ogden, P. J.

This is a contract by the appellee to rent and cultivate land from the appellant. The case was tried in the District Court and appealed to this court. There are but two assignments of error. The first is in regard to one of the charges given by the court to the jury, and which is in the following language : “If the plaintiff did not so cultivate the land, the defendant had. the right either to terminate the contract or to employ hands to cultivate, and charge the expenses to the plaintiff. If he chose the latter course, the plaintiff would be entitled'to his share of the crop, deducting the expense for so cultivating it.” We think there is no error in this . charge. Upon the failure of the tenant to cultivate according to the contract of tenancy, the landlord has the right to consider the contract as broken and the tenancy at. an end; or he may, if he so chose, consider the tenancy as continuing, and employ hands to perform the work which the tenant was bound to do, but from any cause had failed to perform, and charge the expense of such employment to the tenant. This is in substance the ■very charge of the court, in very concise and comprehensive language, and of which we think appellant has no i-right to complain.

The second and only remaining error assigned is, “ The ■verdict is contrary to the law and -the evidence.”

We are unable to see wherein the verdict is contrary to ■the law; at least the appellant has failed to show wherein the conflict exists.

On the facts of the case there is some apparent conflict in the testimony, but the jury were the proper judges of that conflict and of the facts established, by the reconciled or creditable testimony; and in such cases it is not the province of this court to revise the verdicts of juries on the /facts, unless great apparent injury has been done.

The judgment of the District Court is therefore affirmed.

Affirmed.

Opinion delivered October 14, 1873.

Motion for rehearing was filed and continued.