dissenting.
Emily E. O’Brien obtained judgment in the district court against P. J. McNamara; the latter filed here his petition in error, with a transcript; died; and N. J. O’Brien was appointed his administrator; qualified and entered upon the trust; subsequently Emily E. O’Brien suggested the death of the intestate upon the record of this court; under her motion to revive the case .against the administrator, he has been duly cited in — has failed to appear — and his default has been duly entered. She now moves for an affirmance. This leads us to consider the contents of the transcript. A verdict was rendered for the plaintiff below; the defendant moved for a new trial, upon the grounds only that the verdict ivas not sustained by sufficient evidence, and was contrary to law; the motion was overruled, exception taken, and judgment then rendered upon the verdict; no other exception was taken below, and this court is asked to reverse the judgment upon that one. Two questions are presented: one, as to the scope of the motion; one, as to whether it reaches any defect in the case.
As to the first inquiry. The motion is in terms based upon subdivision sixth of section 306 of the Civil Code, page 71 of the compilation, — which subdivision allows the motion, if the verdict is not sustained by sufficient evidence or is contrary to law; but as the last-mentioned ground and subdivision eighth of the section, which subdivision allows one for error of law occurring at the trial, and excepted to by the party making the application — re*434late to the same subject matter and are therefore to be construed together; the motion is in effect based upon the two subdivisions.
A verdict rendered for a party for whom there is no evidence in the case, but which uncontradicted, establishes no fact or facts, on which a verdict can be based, and therefore proves nothing, is a verdict without evidence, unsus-tained by evidence. A verdict rendered for a party for whom there is evidence in the case, and which, uncontra-dicted, furnishes a basis for the verdict, and therefore proved something, — but which, contradicted, does not justify the verdict, is a verdict with evidence, — sustained by evidence, but by-insufficient evidence, — and has therefore been rendered against the weight of the evidence. This is the verdict intended by the sixth subdivision, as one that is not sustained by sufficient evidence. It constitutes common law ground for granting a new trial on motion; and the statute, so far as respects this branch of the subdivision, merely repeats that law. A verdict contrary to law is based iipon an error of law; the error must either have occurred antecedently at the trial, or have originated in the verdict; if the former was the fact, the error should have been excepted to when committed; this is the common law rule, and is what the eighth subdivision necessarily imports, because it indicates no intention to deviate from that rule; if the latter was the fact, the exception should have been taken, either to the order directing the verdict to be recorded, and therefore when the order was made; or, by the bringing of the motion, treating that as an exception — in which way it is in this case unnecessary to determine.
As to the second, inquiry. The petition alleged a lease to have been made between the parties, whereby the plaintiffs below let to the defendant below certain premises for one year from March 5, 1876, at a given monthly rent, payable in advance ; that the rent for the month beginning on March 6, 1878, was in arrear and asked for a judgment accordingly: the general issue only was pleaded.
*435Upon the trial the plaintiff below introduced evidence, of which the tendency was that prior to March 6, 1876, she leased the same premises to the defendant for one year from the 5th of March, 1876, at the same rent, payable monthly in advance; and before the expiration of that year verbally relet the premises to him for one year from the 5th of March, 18J7, at the same monthly rent, payable in advance; and offered no evidence of any other lease as having been made by her to the defendant, than the two, Avhich are last above stated; and that on the 5th of March, 1878, he tendered a partial surrender of the premises; here the plaintiff rested in her opening: thereupon the defendant in answer, introduced testimony, which agreed with the plaintiff’s, as to the first letting; also as to the reletting, except as to the length of time for which the premises were relet; which also agreed with the plaintiff’s evidence as to the surrender being partial, and how partial, and when made. The plaintiff rebutted, and no other evidence was introduced than what I have described. The defendant claimed that the tender vacated the premises, terminating the lease, and exonerating him from further rent; and made no claim to having terminated the lease otherwise. Under section 2d of the statute of December 1, 1875, entitled “ An act concerning the relations of landlord and tenant,” page 436 of the Compilation, — the second lease if in terms a renewal of or a new contract dissimilar to the original lease, created only a tenancy by sufferance; and the tender, because partial, was abortive. The court instructed the jury to find first, whether the second lease was a renewal' of the first, or a new and independent one; secondly, if a renewal, whether the defendant had vacated the premises on the 5th of March, 1878; and if he had not, to render a verdict for the plaintiff for the rent claimed in the petition; if he had, to render one for him. The verdict was rendered for the plaintiff, and is the one which is in question. It was consistent with the evidence, for the testimony on both sides agreed that the second contract was verbal, therefore *436ia effect a tenancy by sufferance; and it agreed that the tender was only a partial surrender. The verdict was, therefore, strictly obedient to the charge. (The charge as to a new and independent contract, meaning a new and dissimilar one, founded upon a misconception of the law unduly favored the defendant, did not mislead the jury,— if it did, they found against this part of it, so that it was harmless.) Moreover, the issue which was raised upon the evidence, and the only one tried, was, as will be subsequently explained, substantially different from that which was presented by the pleadings. If the court could have tried the former, it was its duty to have ordered for the plaintiff below, the verdict that was rendered; because, where the verdict can upon the evidence be but one way and one thing, it stands determined upon the completion of evidence, and the court may not submit it to the determination of the jury, but must order it. Therefore in no aspect is this verdict unsustained by sufficient evidence.
The verdict is contrary to law: but by reason of an error of law, not originating in it, but occurring antecedently to it upon the trial. The contract which is alleged in extenuation, is special, because its terms are special and could exist only by a special contract. The contract, which appears in the proofs, is a tenancy by sufferance, arises by implication, and is no more than what would arise. The two are substantially different; call for correspondingly different proofs; and the latter could not have been introduced upon the record by amendment. Hence by her opening evidence the plaintiff below abandoned the contract that was in issue, and proceeded upon one that neither was, nor properly could be in issue. Consequently, when she rested in her opening, the defendant had a right on motion to a non-suit or a verdict; he omitted to claim either; and the evidence proceeded as I have explain'ed; but at the close of the testimony and before the charge he might still have moved either for a non-suit, or a verdict: this he omitted to do; yet at the close of the charge he might have excepted *437to the charge as given and have made either motion: and this he omitted to do: either application would have been based upon the fact, that there was no evidence in the ease tending to sustain the petition: and upon the principle, that in the absence of such evidence the issue, which had been tried, was false; and there was nothing to leave to the determination of the jury; and that to submit the case to its determination would be error. An exception to a ruling against the motion would have completely protected him against the verdict, because it would have laid the foundation for a review either by a motion for a new trial or by a writ of error.
The motion reached no defect in the case, and the judgment should be affirmed.