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Davis v. Jacoby - 54 Minn. 144, 55 N.W. 908 (1893)


Where parties consent to try their cause below on a particular theory of what the law of the case is, though it be erroneous, they cannot complain, if the result be correct according to that theory.


On May 15, 1890, plaintiffs Samuel H. Davis and the other joint owners leased to the defendant, Fanny G. Jacoby, two lots in Minneapolis for two years from and after July 1, 1891, for a coal and wood yard. She was to pay $450 rent per year, quarterly in advance. Elliott, Phelps & Co. were then tenants in possession under a prior lease from plaintiffs made in July, 1888, to expire in July, 1891. Plaintiffs claim that when the defendant's term was to commence they offered her the keys and the possession of the premises and demand the first quarter's rent, $112.50; that she failed to pay or to take possession; that plaintiffs then notified her that they would lease the property to others for such rent as they could reasonably obtain and hold her for any deficiency. They sued her for the first quarter's rent, and she paid it August 25, 1891, and that action was dismissed. Plaintiffs leased the property on August 1, 1891, to Elliott, Phelps & Co. for $25 a month. They brought this action to recover the deficiency of $ 150 for the year ending October 1, 1892.

 At trial, the parties litigated the question whether or not she was prevented by the prior tenants from obtaining peaceable possession of the property, and on that issue, the cause went to the jury. The jury found for the defendant. The trial court charged, without objection from either side, that if defendant made demand on the plaintiffs for possession of the property and it was not delivered to her, the plaintiffs could not recover. The jury found for the defendant. A case was made containing all the evidence and the charge of the Judge and plaintiffs' exceptions. On it and the pleadings, verdict and files, they moved for a new trial, but were denied, and plaintiffs appealed.



Were the parties bound when they consented to try their cause on a theory on what the law is?




The court affirmed, holding that the fact that defendant tried, ineffectually, to get possession from the former tenant, and tried, unsuccessfully, to rent the premises to him, and that pending such effort, and before she knew that the plaintiff lessors had re-rented the premises to those former tenants, she paid to them the first quarter's rent, was not a waiver of her right to be put in possession by them, nor could any estoppel to assert that right against them be based on those facts. The trial court, without objection from either party, submitted the case to the jury upon that theory, and the evidence introduced on both sides shows such to have been the theory in the minds of both parties through the trial. The only request by plaintiffs for instructions to the jury was based on such theory. When parties consent to try their case upon a certain theory of what the law is, though it be erroneous, they cannot complain at the result, if it be correct according to that theory. 

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