I concur with the result.
However, I think the question of whether defendant was ever in possession of the leased premises is immaterial. I recognize that a person cannot be evicted from premises without ever having had possession because eviction contemplates the taking of possession of the premises in question by putting the other person out of such premises. And a person cannot be put out of possession of premises without first being in such possession. But here we are not so much concerned with what constitutes an eviction, as we are with what facts are necessary to constitute a defense to plaintiff's action to recover rent for the premises. Of course defendant must be limited in his proof to the facts included in his plea to the effect that he was evicted from the premises. But if within the facts so pleaded the defendant can prove sufficient facts to constitute a defense to plaintiff's action, then, in my opinion, it is immaterial whether he proves an eviction or not. In other words, if defendant can, without proving any facts which he has not alleged in his answer, prove a defense to plaintiff's action for rent, *Page 315 even though he fails to prove all the facts which he alleges which are necessary to constitute an eviction, then he should prevail. The facts which he alleged but fails to prove should be treated as surplusage and be disregarded.
Thus if the defendant had in simple and concise language merely alleged the facts which he proved and offered to prove, and in so doing had omitted from his pleadings the term "eviction," and also failed to allege that he was ever in possession of the premises, such pleading would have been sufficient to constitute a defense to plaintiff's action for rent of the premises. If the tenant is deprived of the use of the leased premises by the landlord occupying and using the same for his own purposes, the landlord thereby certainly precluded himself from recovering from the tenant rent for the use of such premises. Such allegations would certainly constitute a defense to plaintiff's action for rent, and this would be true regardless of whether defendant ever was actually in possession of the premises or not. On the other hand such facts are included within the facts alleged in defendant's answer, to the effect that he was evicted from the premises. No one is here claiming that the facts which he proved and offered to prove do not come within defendant's allegation that he was evicted. The claim is that he cannot succeed because he failed to prove or offer to prove all of the facts necessary to constitute an eviction. In other words while it is conceded that the facts which defendant proved and offered to prove are sufficient to constitute a defense to plaintiff's action, and while such facts are included within the facts pleaded, yet, we, by inference, at least, are holding that a failure to prove all that was alleged, even though the part not proved is not necessary to constitute a defense, has the effect of defeating defendant's defense to plaintiff's action for rent. Such, I submit is not the law, nor ever has been the law of this state.
It is thought that no one would contend that such a result would be reached, had the defendant merely made his allegations of the facts which would constitute an eviction, without using that term. Does the fact that he uses that ancient legal *Page 316 term in framing his pleadings prevent defendant from availing himself of facts included within that term which would otherwise constitute a defense to plaintiff's action? If defendant is thus deprived of his defense then the law is materially different in such case than it ordinarily is. A very large percentage of all pleadings in this state contain some allegation of fact or fiction that is not necessary to constitute a cause of action, or a defense. In the ordinary case no one would contend that such surplusage in pleading would defeat the pleader's action or defense. I therefore contend that in this case it should not be allowed to have that effect.