The only question on this appeal is whether the Court of Common Pleas erred in holding that the justice court should have charged the jury as requested in paragraph one of the bill of exceptions. That request proceeds on the assumption, that as matter of law the pleadings showed that the relation of landlord and tenant did not exist between the parties when the complaint was brought. The complaint alleged that such relation did exist between them. The first defense expressly denied this, and the second in effect also denied it, and set up, in substance, that the defendant was in possession, not as tenant, but under a contract to purchase. The reply to the second defense was, in form at least, a joint one. In the first paragraph of that reply Mrs. Rood formally denies all the allegations of the second defense, denies *Page 87 that she ever authorized any one to execute the contract in question on her behalf, and denies that she ever ratified it or agreed to become bound by it, or knew of its existence until September 5th, 1899; while in a subsequent paragraph she in effect admits its execution and existence and that Fernside had entered into possession of the premises under it, but alleges that for a consideration paid by her and her husband to Fernside, it had been rescinded and made of none effect, by agreement of the parties; and in that same reply her husband admits all the allegations of the second defense, except that one which alleges that Fernside was occupying the leased premises under said contract, which allegation was denied by both him and his wife, and sets up the rescission of the contract as above set forth.
This joint reply in thus alleging in the same breath the existence and non-existence of matters set up in the second defense, was undoubtedly defective and objectionable, had Fernside seen fit to take advantage of its imperfections; but instead of doing so he joined issue thereon and went to trial upon it as it stood. In so doing we think that Fernside must be regarded as having waived all objections to the form of the reply; but he was still entitled to have the reply construed most strongly against the pleader, and upon such a construction the reply must be regarded as if the first paragraph of it were stricken out. In this aspect it admits all the allegations of the second defense, save the single one that it denies, and alleges that prior to the bringing of the action the contract set up in that defense had been rescinded, and that Fernside had agreed that such contract "should be of no effect and not obligatory on any of the parties thereto."
Under these pleadings one of the important questions which the parties desired to try was whether Fernside was in possession of the premises as tenant or only as intending purchaser. The complaint alleged that he was in as tenant; the first defense denied this; the second defense alleged that he was in as intending purchaser only; the reply admitted that he had once been in as intending purchaser, but that the contract had been rescinded, and he was not now in as intending purchaser; the rejoinder denied this. *Page 88
Under these pleadings the complainants were clearly entitled to prove, if they could, and the jury were at liberty to find, upon proper evidence, that although the contract had been executed and possession taken under it by Fernside as alleged, nevertheless that it had been rescinded and all rights under it surrendered and abandoned as alleged, long before this action was brought, and that when the action was brought Fernside was in possession as tenant, as alleged; there is nothing in the pleadings that, as matter of law, would prevent such evidence from being admitted, or such finding from being made; in short there is nothing in the pleadings that as matter of law would prevent the complainants from offering proper evidence tending to prove, or the jury from finding from that evidence, that when the action was brought Fernside was in as tenant of the complainants. This being so, the justice court did not err in refusing to charge as requested, that under the pleadings, and as matter of law, the complainants could not show nor the jury find that such tenancy existed between the parties. This was in effect what the justice was asked to say to the jury, and we think he did not err in refusing to tell them so; and this refusal is substantially the only thing that really is, or that really can be, complained of, under the bill of exceptions in the writ of error. It is not alleged nor claimed that the jury were not properly enough instructed in all other respects.
We think the justice did not err in refusing to charge as requested, and consequently that the Court of Common Pleas erred in reversing the judgment of the justice court.
There is error in the judgment here complained of and it is set aside.
In this opinion the other judges concurred.