In the beginning of his oral charge to the jury, the trial judge stated that defendants had disclaimed as to a specified half of the store-building sued for, and that this cast upon plaintiff the burden of proving that defendant was in possession of the portion disclaimed. Evidence had been received on that issue during the trial; the record showed issue joined on the disclaimer; and the issue was formally submitted to the jury. On appeal the case was presented as involving the issue made by the disclaimer, and counsel for appellee took no exception to the arguments in that behalf.
In our foregoing opinion we dealt with the case as stated by the trial judge, and as presented in briefs of counsel, giving no critical attention to special plea 3, hereafter referred to, and we reversed the judgment of the trial court solely because the trial judge, in his later oral instructions to the jury, disregarded *Page 426 the issue on the disclaimer, and ignored the evidence which showed conclusively that defendants had never been in possession of the disclaimed half of the building.
Plea 3 is awkwardly worded as to its pronouns, and we misapprehended its purpose and meaning. But it now very clearly appears to have been filed by all three of the defendants, about 18 months after the disclaimer was filed by the two original defendants, and to present an unequivocal admission of possession by the defendants of the premises sued for at the filing of the suit and for 12 months thereafter. If we were permitted to indulge in surmise, we would suppose that the draftsman of plea 3 intended it to be applicable only to the contested portion of the building, and not to the part disclaimed. But we cannot by surmise change the record, and the unmistakable effect of the plea is a conclusive admission of possession of the entire building sued for, under a claim of right. It was in substance and effect a plea of the general issue; it was utterly inconsistent with the previously filed disclaimer, and it automatically effected its abandonment. Bernstein v. Humes, 60 Ala. 582, 597, 31 Am. Rep. 52; Alexander v. Wheeler, 69 Ala. 385; McQueen v. Lampley, 74 Ala. 408, 410; Crosby v. Pridgen, 76 Ala. 385.
Plaintiff showed a prior possession of the entire premises under claim of ownership, and there can be no dispute as to his title and right of recovery, subject only to the defense of a rightful possession as tenants under a lease. Whether or not defendants' possession of the occupied half was rightful, as asserted by plea 3, depended upon whether or not their lease, which expired on February 1, 1918, was by express agreement, or by implication, or by estoppel, extended into another year. That question was fairly submitted to the jury under appropriate instructions which in some particulars, were too favorable to defendants.
As to the unoccupied half, as stated in the original opinion, had not the disclaimer been abandoned by filing plea 3, defendants would have been entitled to an affirmative instruction on the disclaimer. But with that plea on file, a binding and conclusive admission of possession of the entire premises, plaintiff was entitled to an affirmative instruction for the recovery of that half, together with its rental value as damages, notwithstanding defendants' testimony that they had never had possession of it. If there was no evidence as to its rental value, nominal damages at least were allowable.
The instructions to the jury were that any allowance of damages should be based on the evidence as to rental value.
In the state of the record above set forth, none of the instructions embracing the unoccupied half of the premises can be pronounced erroneous; for the initial error of the trial judge in submitting an issue on the disclaimer could not prevent him from subsequently ignoring that issue and instructing according to the actual issues as fixed by the record, which it seems he did.
In this view of the record, and in the light of the principles previously stated, we find no error in the giving or refusing of instructions.
It is earnestly contended that the trial court erred in allowing plaintiff to testify that the reasonable rental value of the occupied half of the store was $75 a month "after Jack's time was out"; the theory of the objection being that it had not been shown when "Jack's" time was out, and hence the period of rental thus valued was not identified with the period of defendants' occupation. Conceding that this objection was prima facie well taken, it sufficiently appeared from the further testimony of plaintiff, and of defendant Blum, that "Jack" was identical with Blum, and that plaintiff's rental valuation was applicable to the period of occupation by Solomon as sublessee.
It was not error to allow plaintiff to state that, at the time this suit was brought, he had no rental contract with Blum or Solomon. He had testified that he had made a lease to Blum which had expired, and the question and answer evidently referred to the existence vel non of any express contract made thereafter. The facts tending to show an implied contract by holding over and acquiescence were not then before the court, and the denial of the existence of any later rental contract was in no sense a conclusion of the witness, but was the statement of a fact the scope of which could not have been misunderstood by the jury.
An offer to show by a witness that certain transactions are shown in his ledger is a very different matter from showing those transactions of the ledger itself. Plaintiff cannot complain of the ruling in denial of such an offer, even though the ledger entries had been competent evidence if the ledger itself were produced.
The fact that defendant Blum was charging, and defendant Solomon was paying, $35 per month for the use of the half of the building under Blum's sublease to Solomon, had some tendency to contradict the testimony of their value witnesses that the rental value was between $20 and $30 per month, and we think it was admissible for that purpose. Being merely collateral to the issues of the case, it was not necessary to prove the fact by the production of the written lease between Blum and Solomon. Moreover, at the time the question was asked and answered, it did not appear that there was a written lease.
The other assignments of error based on rulings on the evidence are not sufficiently argued to be entitled to consideration, and must be treated as waived. *Page 427
Our conclusion is that the record is free from prejudicial error, and the rehearing will be granted, the judgment of reversal will be set aside, and the judgment of the trial court will be affirmed.
Rehearing granted, and judgment affirmed.