The opinion holds that the damage accruing to the plaintiffs from the failure to give them possession of the farm purchased, because of an outstanding lease, was the fair rental value of the farm for the unexpired term of the lease, plus certain special damages of $14. As the verdict was for $168, it follows that the jury must have found the fair rental value of the farm to have been $154.
The farm consisted of sixty acres, forty-five of which were given over to pasturage, the fair rental value of which, for the unexpired term of eight months, was admittedly $5. Upon a small part of the remaining fifteen acres were growing crops worth not to exceed $58 at the time of sale. The farm was by this lease rented for $50 a year. The only witness testifying to the fair rental value of the farm was one produced by the plaintiffs, who, upon cross-examination, said the fair rental value of the farm was $50 a year; and further that the fair rental for the period of the unexpired term of this lease, from August to March, was from $1.50 to $2 a month, or from $12 to $16. The opinion holds that *Page 174 the value of the crops could not be recovered, and could only be considered as a factor in fixing the fair rental value. This is undoubtedly the law. There was no other evidence than this upon the subject of the fair rental value. The other elements, general in character, stated in the opinion, do not, so far as I can discover, appear in the finding or in the evidence. So the question for the jury was, what is the fair rental value of a farm from August to March, rented for $50 for the year, which was a fair rental, upon which were growing crops of the value of $58? The jury found this to be $154.
After instructing the jury that the measure of damages was the fair rental value of the premises, plus $14, the court said: "If you think the fair rental value of the farm was more than $50 a year, you may assess such sum in excess of $50 as you think it was in excess, but only for the eight months from August 2d to April 1st, 1910." This instruction was, under these circumstances, clearly inadequate, and this, together with the improper admission of the value of the crops and the damage to the plaintiffs' household goods as elements of damage, probably account for a verdict so grossly excessive. It is true that in its charge the court gave the jury the correct rule for measuring damage, but I fear the court's statement required further explanation and a more definite withdrawal of the purpose for which the evidence was originally offered.
No theory has been suggested in this case by which the fair rental value could be calculated as of this sum, and a reading of the record will demonstrate that no amount approximating this verdict can be reached as the fair rental value. The amount involved is small, as the opinion emphasizes; even so, I am unwilling to concur in a result which denies to this defendant his right to secure justice, either because the amount in *Page 175 litigation is not of large proportion, or because the cost of maintaining his rights will exceed the defendant's possible gain.
Because the damages are highly excessive, and the charge as to damages inadequate, the defendant in my opinion is entitled to a new trial.