delivered the opinion of the court,
The subject of complaint in the first assignment of error is that the plaintiff below was permitted to give in evidence the lease, on which his action was based, without any explanation of the material alteration apparent on its face.
Among other covenants on the part of the lessee, the lease, as originally written, contained the following: “Also to keep the water-pipes and hydrant, &c., in good repair.” These words were evidently erased by drawing a pen several times over them, and *338thus striking out one of the covenants of the lessee. The erasure was not noted in the attestation clause, nor was there any explanation given, as to when, why, or by whom it was done. The plea of non est factum put in issue the execution of' the lease, and its continuance, without material alteration, as the deed of both parties, to the date of the plea. The alteration was in a material part of the instrument, and manifestly enured to the benefit of the lessee, by whom it was produced and offered in evidence more than ten years after his alleged cause of action accrued, and after the decease of the lessor. It is very clear that, under such circumstances, he should have been required to give some testimony explanatory of the erasure: Jordan v. Stewart, 11 Harris 244, and Robinson v. Myers, 17 P. F. Smith 9. If this had been done, it would have been for the jury, under proper instructions from the court, to say whether the alteration was satisfactorily explained or not. The learned judge, however, not only overruled the specific objection made to the admission of the lease, but, treating the erasure of one of the lessees’ covenants as wholly immaterial, instructed the jury that if they believed the evidence of the plaintiff he was “ entitled to recovery, with costs, to the amount of $1440, being the difference in rental of the premises for three years, from April 1st 1865 to April 1st 1868, being the three years during which plaintiff claims he was entitled to the premises, viz.: $300 per year, being $900 in all, with its accrued interest.” In this we think there was error.
If the erasure had been satisfactorily explained, it was still a question for the jury whether the lessee had duly notified his landlady of his election to retain the premises for the further term of three years. The testimony as to written notice left at her dwelling with an adult member of her family, was some evidence proper for the consideration of the jury, but it was not conclusive proof that she was actually notified of the tenants’ election. It was also a further question of fact for the jury and not for the court, to determine whether, in point of fact, there was an eviction of the tenant. The testimony, as we have it, is quite as consistent with his having acquiesced in her demand for possession on the 1st of April 1865, as with an eviction by her. The tenant, who succeeded him,- testified that he leased from Mrs. Davis on that day and went into possession. Eor aught that appears the premises may have been voluntarily vacated by the plaintiff then or prior thereto. It is scarcely necessary to say that if he acquiesced in the notice to quit, or voluntarily surrendered the possession at or before the close of his original term, he was not entitled to claim damages. The first and fourth assignments of error are sustained.
Judgment reversed and a venire facias de novo awarded.