1. APPEAL — Assignment of Errors — Counterclaim Insufficient to State Cause of Action — Demurrer Not Filed — No Question Presented. — An assignment of error that a counterclaim did not state facts sufficient to constitute a cause of action presents no question for review, where it was not demurred to, for it challenges no alleged error of the trial court. p. 173.
2. JUDGMENT — Motion for Judgment Non Obstante Verdicto — Sufficiency of Counterclaim and Evidence Not Raised. — The sufficiency of a counterclaim and the evidence cannot be challenged by a motion for judgment non obstante verdicto. p. 174.
3. LANDLORD AND TENANT — Use of Premises — Repairs and Alterations — Right of Tenant to Make Repairs and Offset Cost Against Rent Due. — Where a landlord had agreed to repair the roof of rented property and the tenant had knowledge of the state or disrepair of the roof, and the cost of putting it in repair would have been small, the tenant was entitled to make the repairs and offset the cost against any rent due, but he could not merely continue his occupancy, suffer damage and charge the landlord therewith. p. 174.
FLANAGAN, J.
Appellants brought this action for the recovery of rent. Appellee by counterclaim sought to recover damages for breach by appellants of their alleged agreement to repair the roof on the rented property. Trial resulted in a verdict for appellants on their complaint in the sum of $210.42 and for appellee on his counterclaim in the sum of $115. Appellants' motion for a new trial was overruled, judgment was entered in favor of appellants against appellee in the sum of $95.42, and this appeal followed.
Appellants assign as error that the counterclaim does not state facts sufficient to constitute a cause of action. This assignment presents no question for it does not challenge any alleged 1. error of the trial court. If appellants desired to question the sufficiency of the counterclaim they should have demurred thereto. If the trial court overruled such demurrer they could assign such ruling as error on appeal.
Appellants also assign as error the overruling of their motion for judgment non obstante veredicto. This action of the trial court was clearly correct. Appellants by that motion sought 2. to challenge the sufficiency of the counterclaim and of the evidence. Such is not the function of a motion for judgment non obstante veredicto.
Finally appellants assign as error the overruling of their motion for a new trial which motion challenges the sufficiency of the evidence and the legality of the verdict.
It appears from the record that appellee had knowledge of the state of disrepair of the roof. For all the evidence discloses the cost of putting it in repair would have been small. 3. Under such circumstances appellee was entitled to make the repairs and offset the cost against any rent due for the premises; but he could not merely continue his occupancy, suffer damage and charge his landlord therewith. Hendry v. Squier (1890), 126 Ind. 19, 25 N.E. 830; Guynn v. Tremont Hotel Co. (1921), 75 Ind. App. 647, 129 N.E. 336. The verdict of the jury for appellee on his counterclaim is not sustained by sufficient evidence and is contrary to law.
Other questions presented are not likely to arise on another trial and therefore do not require consideration here.
Judgment reversed with instructions to sustain appellants' motion for a new trial and for further proceedings consistent with this opinion.
NOTE. — Reported in 70 N.E.2d 436.