We see nothing erroneous in the ruling of the court below, or in the charge to the jury.
The evidence offered by the defendant, for the purpose of showing the degree of care and diligence exercised by him, in preventing the sale of intoxicating liquors upon the demanded premises, was clearly admissible and proper for the consideration of the jury. The fact that he communicated to Barber when giving him a lease, the condition annexed to his title, and required of him an agreement, that he would do nothing that would injure that title, went to show the precaution which he took to prevent a violation of that condition.
*247The construction given to the original deed from the plaintiffs, we think, was the correct one. It could not have been the meaning and intention of the parties, that either the grantee or his assigns, should forfeit the estate, in consequence of the unauthorized act of a third person, unless they were chargeable with some fault or negligence.
If a rum-seller, upon some public occasion, should take possession of a vacant lot in a city, holden by a title similar to that of the defendant, and there, without the approbation or knowledge of the owner, continue to sell openly and publicly ardent spirits for a whole day, such unauthorized sale would not work a forfeiture of the estate. Indeed so harsh a construction has not been claimed by the plaintiffs.
But it is said the sale by Barber was open and public, and the defendant was so situated that he must have known it. But this knowledge was denied on the part of the defendant. Whether he actually had that knowledge, was a question of fact for the jury, and their attention was called to the evidence upon that subject, as having an important bearing upon the question submitted to them.
Without doubt the estate of the defendant would have been forfeited, had there been such a sale with his assent, or with his knowledge and without any efforts on his part to prevent it.
Again, it is said that the defendant was notified of the sale by the plaintiffs’ clerk, and that was sufficient. But the defendant claimed that immediately upon such notice, he instituted enquiries and discovered no foundation for the charge, and had reason to believe there was none. Whether upon such notice he faithfully exercised reasonable diligence in ascertaining the truth, was also a question of fact for the jury and their attention was likewise called to the evidence upon this subject, as having an important bearing in the case.
Finally it is said, that the defendant was chargeable with negligence in giving a written lease, relying upon the lessee’s agreement not to sell spirituous liquors upon the demised premises, without inserting a provision by which the lease should be rendered void upon such sale,
*248This omission would have been strong evidence of neglect on his part, had he thereby been prevented from putting a stop to such sale by his tenant. But his claim was, that as soon as he discovered that Barber had violated his agreement, he caused him to be removed from the premises, and it does not appear that he experienced any difficulty in effecting such removal, in consequence of any omission in the lease.
The plaintiffs can not complain of any act of the defendant, from which they have suffered no injury.
We see no reason for disturbing the verdict, and therefore do not advise a new trial.
In this opinion, the other judges, Stores and Hinman, concurred.
A new trial not granted.