(after stating the facts.) This is an appeal from a judgment against defendants for rent of land.
After hearing the evidence, the court directed a verdict for the plaintiffs, and refused to put this direction to the jury in writing, further than to write out the verdict and tell one of the jurors to sign. Counsel for defendants contend that this direction to return a verdict was an instruction, and that the presiding judge erred in refusing to reduce -it to writing. But this contention cannot be sustained. The object in having the presiding judge to reduce his instructions to writing, when requested by either party, is to avoid any controversy about the language or meaning of the court’s charge to the jury when the case is submitted to the jury. But this provision of the law has no application to a case when the judge is of the opinion that there is nothing to be submitted to the jury, and disposes of the case by directing them to return a verdict for one of the parties for a designated amount. In such a case the form of the instruction or the particular words used by the judge are of no moment, for the act of the jury in returning the verdict is merely formal. The direction to return a certain verdict is in fact a withdrawal of the case from the jury and a decision by the court. The judgment itself shows this, and there is no possibility of a mistake as to the action of the court, and no necessity for reducing the particular words used by the court to writing. In this case the presiding judge prepared the verdict, and recited therein' that it was returned by the direction of the court. Nothing more could be asked.
The reasons which influenced the judge to direct a verdict are not stated in the record, but from the árgument of counsel we infer that the presiding judge was of the opinion either that the notice given by the lessees to the lessors that there had been an overflow was not sufficient, or that it was not given at the time required by the contract. Now, the provision of the contract in reference to notice is that “in the event of a partial overflow of said lands second parties shall notify first parties on the first day of June of such year if they claim damage to the crop thereby.” When we remember that this was a contract between the owners of the plantations and their lessees, it L evident that there was nothing formal about the notice required. It is not even required that the notice should be in writing. The intention was that the lessors should have notice of this overflow and of the claim for a reduction of the rent by the first of June. „ The evidence shows, we think, that they were given notice of that by a letter mailed by lessees on the 7th of April, which plaintiffs must have received a few days afterwards, for the letter was answered.
It is contended with much force that this notice was of no effect because not given on the first of June, as provided in the. contract. But we think that such construction of the contract would be entirely too strict. If the notice was given prior to the first day of June, the parties had notice on that day, which was a substantial compliance with the terms of the contract. So soon as the overflow came, and it was certain that damage was caused thereby, we think the lessees had the right to give the notice required by the contract. If, after the overflow and notice thereof, the parties could not, or did not, agree on the amount of the' reduction in rent, the contract fixes it by providing that the rent shall then be one-fourth of the cotton and one-third of the corn, hay, and other products of the land for that year.
The contract also provided that in the event of an overflow the lessor should have the use of the gin house and machinery for that year. But ’ neither the fact that the lessees continued to use the gin, nor the fact that they did not cut and gather the Bermuda grass on the place, forfeited their right to the reduction in the rent provided for in case of ctverflow. If the lessees used the gin, they are liable to the lessors for the rental value thereof -for that season; and if they failed to gather any crop they were required by their contract to gather, then they are, by such contract, responsible to the plaintiffs for one-third the value thereof. Whether Bermuda grass was a crop covered by the contract is a question of fact about which we express no opinion.
There was evidence tending to show that there had been a partial overflow and damage to crop of defendants, that plaintiffs had notice thereof, and that defendants were not liable for the $2000 as rents for that year, but for a part of the crops produced and for the use of the gin house a'nd machinery. We are therefore of the opinion that the presiding judge erred in withdrawing the case from the jury.
Judgment reversed, and cause remanded for a new trial.