Fitch v. Sargeant

1 Ohio 353

Opinions

By the Court :

A majority of the judges are of opinion that the special contract was put an end to by the concurrent act of the parties. The defendant sends word to the plaintiff that he can no longer retain the possession of the premises, but intends to abandon them. The-plaintiff directs a person, in the event of such abandonment, to take charge of them. After this, the defendant leaves the house- and lots, and the possession is resumed by the plaintiff. The special contract is thus given up, and the right of the plaintiff to-recover rent for the time the defendant enjoyed the premises must-be decided by the same rules as if the possession had been originally taken upon an understanding that the defendant should pay what was reasonable. The verdict of the jury is founded upon this view of the subject. Substantial justice has been done between the parties, and a new trial ought not to be granted.