Townsend, J.
Appellant makes the following assignment of errors:
“(1) The court erred in not sustaining defendant's demurrer to the third paragraph of plaintiff's amended complaint.
“(2) The court erred in its ruling and remarks in passing on defendant’s objection to testimony on the question of damages, and in holding that plaintiff could recover damages in addition to the reasonable rental value of the premises.
“(3) The court erred in not confining plaintiff’s testimony as to damages to the reasonable rental value of the premises.
“(4) The court erred in that part of its charge to the jury which is in words and figures as follows, to wit: ‘Now, this suit is not a suit brought for the purpose of collecting rent. It is a suit brought for-the recovery of the possession of the premises. But if you find that the premises have been wrongfully held by the defendant, you can give damages. This is not primarily a suit for the collection of rent. It is a suit for the possession of the premises. You are further instructed that, if you find for the plaintiff, the measure of damages will be the fair rental value of the premises from the time that the defendant unlawfully with[174] held the possession of the premises, and such other damages as you may believe from the evidence the plaintiff sustained by reason of being kept out of possession of' the premises. This, however, does not mean that he could recover damages in this lawsuit for any property which might have been destroyed, such as trees cut, fences torn down, wire removed, buildings destroyed. That would not be recoverable in this kind of a lawsuit.' Which was excepted to at the time.
“(5) The court erred in overruling defendant's motion for a new trial, which was excepted to at the time.
“(6) The court erred in entering judgment on the verdict of the jury.”
Appellant contends that the court should have sustained the demurrer to the third paragraph of plaintiff's amended complaint, but concedes that “the court did, in effect, sustain the demurrer in the course of the trial. * * *” It is objected by counsel for appellee that appellant failed to call the attention of the court at the proper time to its failure to pass upon the demurrer. During the trial of the case, as conceded by appellant, the demurrer to the third paragraph of the amended complaint was passed upon, the demurrer sustained, and leave was granted appellee to amend his complaint. The complaint was amended by adding the words, “and damages to same by defendant's pasturing meadow in the sum of 190.” This was demurred to but it was then agreed by appellant that the demurrer be sustained thereto, which was accordingly done. But appellant says, “Its failure to do so in the first instance enabled the plaintiff to get before the jury a lot of incompetent testimony to the prejudice of the defendant.” It may be said, however, that, the court having passed upon the demurrer during the trial, the effect upon the evidence introduced thereafter would be the same as if [175] the demurrer had been passed upon when filed, before trial, while, as to the evidence introduced prior to the ruling upon the demurrer, a careful reading shows that that was confined by the court to the question of the rental value of the premises in controversy. This was clearly not error to be complained of by appellant.
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Townsend, J.
Appellant makes the following assignment of errors:
“(1) The court erred in not sustaining defendant's demurrer to the third paragraph of plaintiff's amended complaint.
“(2) The court erred in its ruling and remarks in passing on defendant’s objection to testimony on the question of damages, and in holding that plaintiff could recover damages in addition to the reasonable rental value of the premises.
“(3) The court erred in not confining plaintiff’s testimony as to damages to the reasonable rental value of the premises.
“(4) The court erred in that part of its charge to the jury which is in words and figures as follows, to wit: ‘Now, this suit is not a suit brought for the purpose of collecting rent. It is a suit brought for-the recovery of the possession of the premises. But if you find that the premises have been wrongfully held by the defendant, you can give damages. This is not primarily a suit for the collection of rent. It is a suit for the possession of the premises. You are further instructed that, if you find for the plaintiff, the measure of damages will be the fair rental value of the premises from the time that the defendant unlawfully with[174] held the possession of the premises, and such other damages as you may believe from the evidence the plaintiff sustained by reason of being kept out of possession of' the premises. This, however, does not mean that he could recover damages in this lawsuit for any property which might have been destroyed, such as trees cut, fences torn down, wire removed, buildings destroyed. That would not be recoverable in this kind of a lawsuit.' Which was excepted to at the time.
“(5) The court erred in overruling defendant's motion for a new trial, which was excepted to at the time.
“(6) The court erred in entering judgment on the verdict of the jury.”
Appellant contends that the court should have sustained the demurrer to the third paragraph of plaintiff's amended complaint, but concedes that “the court did, in effect, sustain the demurrer in the course of the trial. * * *” It is objected by counsel for appellee that appellant failed to call the attention of the court at the proper time to its failure to pass upon the demurrer. During the trial of the case, as conceded by appellant, the demurrer to the third paragraph of the amended complaint was passed upon, the demurrer sustained, and leave was granted appellee to amend his complaint. The complaint was amended by adding the words, “and damages to same by defendant's pasturing meadow in the sum of 190.” This was demurred to but it was then agreed by appellant that the demurrer be sustained thereto, which was accordingly done. But appellant says, “Its failure to do so in the first instance enabled the plaintiff to get before the jury a lot of incompetent testimony to the prejudice of the defendant.” It may be said, however, that, the court having passed upon the demurrer during the trial, the effect upon the evidence introduced thereafter would be the same as if [175] the demurrer had been passed upon when filed, before trial, while, as to the evidence introduced prior to the ruling upon the demurrer, a careful reading shows that that was confined by the court to the question of the rental value of the premises in controversy. This was clearly not error to be complained of by appellant.
The remarks of the court complained of in appellant's second assignment of error, upon the question of damages, are as follows: “I think that is proper. Is it possible, if I own a farm, and rent it to a man, and demand possession of it, and I rented it .to him last year for $100, and he says, ‘No, I am going to stay,’ that he can say that my measure of damages is the rent we fixed the year before? If the man holds over and says, T am going to keep that farm, whether you want it or not,' the measure of .damages may be something more than the rent agreed upon and fixed the year before. Mr. Maxey: Not under this law. The Court: It will be today. Mr. Maxey: We except to the remarks of the court. The Court: But it is not the whole crop, as Mr. Blair contends, by any means. Nor do I think it is the rental value as agreed upon the previous year.” And the charge complained of in appellant’s fourth assignment of error is as follows: “Now, this suit is not a suit brought for the purpose of collecting rent. It is a suit brought'for the recovery of the possession of the premises; but, if you find that the premises have been wrongfully held by the defendant, you can give damages. This is not primarily a suit for the collection of rent. It is a suit for the possession of the premises. You are further instructed that, if you find for the plaintiff, the measure of damages will be the fair rental value of the premises from the time that the defendant unlawfully withheld the possession of the premises, and such other damages as you may believe from the evidence the plaintiff sustained by reason of being kept out of possession of the premises. This, howe.ver, does not mean that he could [176] recover damages in this lawsuit for any property which might have been destroyed, such as trees cut, fences torn down, wire removed, buildings destroyed. That would not be recoverable in this kind of a lawsuit.” Appellant contends the quoted remarks of the court were prejudicial to him, and, when taken in connection with the foregoing charge, that the jury would be led to believe that they could find other damages than the reasonable rental value. What damages can be recovered? Section 3362, Mansf. Dig. (section 2296, Inch Ter. St. 1899), provides as follows: “In all cases of forcible entry and detainer, and forcible and unlawful detainers, when the defendant gives bond to retain possession of the lands and premises mentioned in_ the writ and declaration in the cause as provided by law, it shall be 'lawful for the plaintiff to introduce before the jury trying the main issue in such action evidence showing the damage he may have sustained in being kept out of possession of said lands and premises, and the jury, if they find the issue for the plaintiff, shall at the same time assess what damages, if any, the plaintiff has sustained in being kept out of possession by the defendant, and the court shall render judgment restoring the property to the plaintiff, as now prescribed by law, and shall also render judgment against the defendant and his security in the bond for damages as found by the jury, as well as the cost of suit.” This statute explicitly says it shall be lawful for “plaintiff to introduce * * * evidence showing the damage he may have sustained in being kept out of possession,” etc., and the jury are to assess such damages, etc. The court, in his charge, said to the jury: “You are further instructed that, if you find for the plaintiff, the measure of damages will be the fair rental value of the premises from the time that the defendant unlawfully withheld the possession of the premises, and such other damages as you may believe from the evidence the plaintiff sustained by reason of being kept out of possession of the premises” — thus telling the jury that they could, in arriving at the damages the appellee [177] bad sustained, consider the fair rental value of the premises, and such other damages as he sustained while being unlawfully-kept out of possession of same. This instruction is clearly within the terms of the statute. In Case vs Hall, 2 Ind. Ter. 12, (46 S. W. 181), in discussing a part of an instruction complained of, the court said: “The third part of said instruction complained of is as follows, to wit: ‘The measure of damages is the rental value of the premises, but if you further believe from the evidence that said land is mainly or only suitable for. the raising of wheat, and the unlawful detention of it has prevented the plaintiff from putting in a wheat crop, and thereby impaired its rental value for the present year, you may take that into consideration in assessing the damages for withholding said premises up to the present time.’ The case was tried March 17, 1897, and the evidence showed that wheat had to be sown in the fall of the year, but, by reason of the failure of the defendant to sow wheat in the fall of 1896, the only crop that could be gathered for 1897 was a crop of weeds; and the jury very properly, in finding as they did for the plaintiff, fixed the damage at $300, the annual rental being $200 under the terms of the rental contract. The instruction and verdict are fully authorized by section 3362 of Mansfield's Digest (section 2296, Ind. Ter. St. 1899).” The court further told the jury that the instruction did not mean that appellee could recover damages for property destrojred, trees cut, fences torn down, wire removed, and buildings destroyed, but appellant complains because the court did not say what damages in addition to rents appellee could recover. The court evidently left that question to be settled by the jury from the evidence in the case. This disposes of the second, third, and fourth assignments.
Appellant’s fifth assignment of error is that “the court erred in overruling defendant’s motion for a new trial”; the reason given being that the damages found by the jury were [178] excessive, and included damages other than the rental value of the premises. Under the rule as laid down above, and under the charge of the court, the jury were justified .in finding damages other than the rental value of the premises.
The testimony upon the question of damages was conflicting, but that was exclusively for the jury, and, as long as there was evidence to sustain the verdict, this court is not authorized to disturb the same. Therefore the judgment of the court below is affirmed.'
Clayton, J., concurs.