The defendants in error sued the, plaintiffs in error for damages flowing out of a contract for lease of certain premises, in not fixing the same in a tenantable condition for the purposes for which they were leased under the contract, and in ejecting the defendants in error therefrom wrongfully, before the lease expired. The trial resulted in a verdict for a thousand dollars, and plaintiffs in error, defendants below, excepted to the refusal of a new trial on the several grounds stated in the motion, and assign error here on the refusal of that motion on those grounds.
1. While the declaration is not as formally and lucidly drawn as it might have been, there was no error in overruling the motion to dismiss it.
In substance, it is an action on the case for damages consequent upon the breaking of the terms of the lease, and in effect sounds in tort. The contract is set out by way of indictment, and the breach of duty under the lease, first, in not fixing the property so as to be tenantable for the purpose for which it was leased, and which plaintiffs in error had agreed to do; and secondly, in turning out the defendants in error before the time had expired. There are not two counts in it, but one count with two main branches of damage for the wrong or tort in not performing the. duty under the contract which the law imposed upon the plaintiffs in error. There is no misjoinder of *287counts for tort and contract. This case is covered by the City and Suburban Railroad Co. vs. Brauss, 70 Ga., 368. The declaration sufficiently sets out the complaint, of the defendants in error.
2. Tiie sweeping statement on the stand by Hill, one of the plaintiffs below, that he was damaged three thousand dollars, was inadmissible, 58 Ga., 110 ; but before granting the rulo nisi the court does not. certify this ground of the motion. The motion for the new trial, the rule nisi thereon and qualifications thereof, are matters of record, and where the bill of exceptions and record' differ in relation to matters of record properly, the record will prevail.
Nothing else seems objectionable in this ground of the motion. The witness had the right to swear as to his daily receipts and profits.
3. The counsel for defendants to the suit had drawn out from the witness, Hill, the plaintiff, the names of a large number of his customers, and the court remarked that he seemed to be taking a census, and he would adjourn the case to next day. Night was approaching, and the judge made the remark jestingly as a reason for adjourning. It is excepted to, because it may have misled the jury. How, is not set out in the motion. We think the remark wholly immaterial, and it could not reasonably mislead the jury or hurt the defendants. The point is wholly unlike that in 61 Ga., 359.
4. It was legitimate to prove damage from want of water, which, according to plaintiffs’ version of the contract of lease, defendants had agreed to supply, and failed m digging wells according to contract, when the purpose of the lease, a wagon and stock-yard, is considered. Failure to comply with the terms and damage therefrom, are enough to set out in the declaration, without specifying every item. So there was no error in refusing to rule out all evidence of damage from lack of water. The damage flowed directly from the wrong in not furnishing water as, *288according to plaintiffs’ version, defendants had agreed to do.
5. The two defendants, man and wife, were joined in the action. The husband had made the contract individually, and yet took out the warrant to dispossess as agent for his wife. They were properly joined as joint tort-feasors, unless a plea of misjoinder had been entered and established by legal proof. This, in substance, is the charge, and the defendants show in this record'no hurt to either by it.
6. There was no error in charging the jury, “ You will look to see if there are breaches of the contract. Plaintiffs complain that it was broken in two ways: First, that defendants were to erect certain buildings, stalls, blacksmith shop, and supply plenty of water; and that this was not done. Did defendants fail in any one or more of these ? Then there was a breach of contract, and to the extent of plaintiffs’ damage, they would be entitled to recover.” This was the very gist of the action, outside of damage from the eviction, and we cannot see error in putting the issue before the jury right there, and in the language used by the judge in giving the law on that issue.
7. On the subject of damage consequent on unlawful and wrongful eviction prior to the expiration of the lease, the court charged: “Any evidence of damages traceable to this breach of contract, either from loss of business before by plaintiffs, or profits afterwards by parties occupying the premises, may be considered by you and made the basis of your calculation in finding damages, should you find any.”
We think that this charge is error. What other parties in possession made afterwards, is no basis for recovery by plaintiffs. The successors of plaintiffs may have been more popular, and thus have had more customers. They may have managed better, and made more money. They may have been men of better habits, more prudent and more successful business men, more accustomed to this *289sort of business, and in these and many other ways the business may have been more profitable with them than in the hands of plaintiffs. Therefore, to base plaintiffs’ prospective profits on their success, would be far from a just rule by which to measure damages sustained by them by their eviction. True, evidence of future patronage, of the number of wagons, cattle, sheep, etc., received in the yard by the successors, would be admissible to show that the railroads permeating the North Georgia territory had not materially lessened the wagoning, and cattle and sheep-driving before their building and running, in rebuttal of proof to the contrary; but to make the profits of successors the measure of how much plaintiffs could have made if not evicted, and thus the measure of their damages, would not be in accordance with law or reason.
8. So, too, on the subject of eviction, the court charged : “ If plaintiffs were ejected, and in that act defendants made a second breach, in finding nominal damages, you can consider the oppressiveness of defendants’ action in this second breach, if you believe there were breaches, and there was oppressiveness in the second breach.” We think that this charge, too, is erroneous, and was apt to mislead the jury. There is no evidence of oppression or oppressiveness in this record in the proceeding to dispossess the plaintiffs. It was simply the ordinary process legally authorized to eject a tenant holding over. A counter-affidavit was put in and bond given by plaintiffs; no harshness of any sort was resorted to; it was simply a test of the question, according to law, whether the plaintiffs were tenants holding over or not. The plaintiffs declined the contest, and thus that proceeding was ended by their relinquishing possession under protest, according to their own evidence. That did not deprive them, it is true, of recovering their legitimate damages flowing from the breach of contract when evicted, and by reason of the eviction, if they gave up under protest. Those damages were what they lost by being evicted, to be measured by what they could have cleared, *290liad they not been evicted, if they were not holding over as tenants; but they can recover nothing by way of punitive or exemplary damage for oppression, harsh treatment, or anything of that sort, for there is no evidence of it in this record. Therefore, it was error to make the charge, and it may have misled, and probably did mislead, the jury, and increase the damages.
The other grounds are in regard -to the verdict being against certain charges of the court, the law and evidence, newly discovered evidence, etc., which, as the case is to be tried over, and to rule on them would not aid in the new investigation, and might have the effect of depriving the jury of a fair trial de novo on- the facts, should we intimate our opinion thereon, we deem it unnecessary or improper to rule upon.
As the case is a close one, closely contested on the evidence, which is very conflicting, both as to the terms of the lease and its violation by the parties, and as to the damages, if the lease was violated by the defendants, we feel it our duty to reverse the judgment on the 7th and 8th grounds of the motion for a new trial, and to direct that the verdict be set aside and a new trial granted for error in the charge, as alleged in those two grounds.
Judgment reversed.