On Motion for Rehearing.
. Both defendants, A. & P. and Truck Lines, have filed motions for rehearing in this cause. We have concluded that there is merit in A. & P.’s assignment of error No. 6 to this court. It reads: “The judgment of affirmance (as reformed by us) is erroneous because based upon no evidence of reasonable rental value either before or after November 1, 1946.” We have again gone carefully through the entire record and have concluded that the judgment of the trial court and that entered by us with reference to the amounts of rentals awarded to the Lodge was wrong.
The original petition in this case was filed September 3, 1946. In the amended petition, filed October 22, 1946, the Lodge made allegations upon which it sought to recover for the use and retention of the building by A. & P. in this language: “That this plaintiff has served notice on said defendant (A. & P.) and here again notifies said defendant to vacate said building and premises at once. That its tenancy has been from month to month at the will of this plaintiff and it is now entitled to possession of said building and premises. That the defendant has refused to vacate said building to this plaintiff’s great damage. That the reasonable rental value of said premises is the sum of $150.00 per month and plaintiff is entitled to said sum as a rental for the time defendant keeps possession of same and is entitled to the-further sum of $1,000.00 against said defendant for withholding said building from plaintiff without authority and after due notice to vacate same.”
We note that neither the judgment of the trial court nor that of this court in reforming that of the trial court makes plain *227the amount the Lodge should recover against A. & P. for the wrongful withholding of the premises after the Lodge had attempted to terminate what it deemed the tenancy of A. & P. at will by the month.
The testimony of the secretary of the Lodge shows without dispute that A. & P. had paid and the Lodge had accepted rentals from A. & P. at $90 per month up to the time of the institution of this suit (September 3, 1946); that all rentals had been paid by check on the first of each month in advance. We must conclude from this that the September rent was paid. It is obvious to us that no amounts were paid by A. & P. for the months of October, November and December of 1946 and none paid for January, 1947. The judgment of the trial court was entered January 9, 1947.
It is apparent from the record that A. & P. had occupied the building for a number of years, paying $90 per month for its use, and that it desired to continue using the premises at the same price. It is reasonably certain that A. & P. was still occupying the building at the time of trial. We think these facts present some substantial evidence of the reasonable value of the use of the building; it seems to us that A. & P. must concede that the use and occupancy were reasonably worth at least that amount. The Lodge made no effort to prove that the reasonable value of the use of the premises was in excess of that amount at the time of trial. There is some authority for holding that a court cannot assess damages in certain kinds of actions accruing after the institution of the suit, but the general rule is that each case is to be determined largely upon the facts of that case. We think that in this case the trial court could not properly award to the Lodge any amount of damages in the form of rentals in any specified amount for any period of time after the date of the judgment entered. We decline to adjudicate at this time what amount, if any, the, Lodge shall recover against A. & P. for withholding possession after the date of the judgment but do hold that payment of such judgment as we enter will cover payment for all previous months including January, 1947. Any subsequent controversy between the parties will of necessity have to be determined by another action.
In A. & P.’s original brief filed in this appeal, some of the matters now assigned as to damages for the wrongful withholding, often referred to as rentals, were raised by its seventh point of error, but they were treated in the brief as “merely immaterial digressions, because the judgment should be reversed in its entirety.”' It is apparent to us now that we did not, at that time, fully grasp the real significance of the point.
It is our view of this case that from the nature of the Lodge’s asserted cause of action and the defenses urged by the defendants that the case was tried upon the theory that the Lodge was seeking possession of the premises, damages to the building, and for the reasonable value of the use ’of the premises during the time A. & P. wrongfully withheld possession from the Lodge. In such cases if the court awards possession to the plaintiff, as it did in this case, it may in the same action render judgment in favor of the plaintiff against the defendant for the damages sustained by reason of the withholding, provided such damages are the immediate consequence of the act complained of by plaintiff and are the natural and necessary result of that act and flow as a direct and natural consequence therefrom. IS Am.Jur. 406, sec. 16.
In view of what we have said in connection with these motions for rehearing, we set aside the judgment heretofore entered by us and withdraw that part of our comment upon the effect of the seventh point of error by A. & P. as follows: “We can see no error in the holding. It cannot be said there was no evidence to support it.” These conclusions also require withdrawal of the last three paragraphs of the original opinion, the first paragraph beginning with the words, “Referable to all other points of error,” etc., and substitute for that part of the opinion withdrawn the following:
In all points of error by A> & P. except points 7 and 11, it appears that the principal contention presented for reversal of this judgment is that the testimony does not support the court’s fact findings nor the judgment entered. For the reasons stated in the *228original opinion and these conclusions we reform the judgment of the trial court to the extent that the Lodge recover of A. & P. possession of the building and the sum of $360 for the wrongful withholding of the possession of the premises during the months of October, November and December, 1946, and January, 1947; that the Lodge take nothing against A. & P. for damages done to ' the building; that the Lodge recover of Truck Lines its damages for $1,500 for injury done to the building. As thus reformed the judgment of the trial court will be affirmed. Except in the respects mentioned, both motions for rehearing are overruled.
Under authority of Rule 448, Texas Rules of Civil Procedure, costs of this appeal will be taxed one-third against each the Lodge, A. & P. and the Truck Lines.