[Edgewood Highland Land Company v. McFerren.] affirm his lease, and be allowed to recover rents paid by him for the period during which he was in possession of the property before repudiation.-See 16 A. & E. Enc. of Law (2 Ed.) p. 290; 22 Cyc. p. 530, notes 75 and 76; 1 Taylor on Landlord and Tenant (9th Ed.) § 96; 2 Kent's Commentaries, p. 240; Aldrich v. Abrahams, Lalor's Supp. (N. Y.) 423; Johnson v. N. W. Mut. Life Ins. Co., 56 Minn. 365, 59 N. W. 992, 26 L. R. A. 187, 45 Am. St. Rep. 473. The rulings of the trial court on the pleadings and in the finding made and judgment rendered are pointedly in conflict with our holding as above expressed, and a reversal of the case must necessarily follow.. Reversed and remanded. NOTE.—The judgment of the Court of Appeals in this case was, by the Supreme Court, reversed and rendered in the case of Er parte H. H. McFerren, 63 South. 159. Francis v. Parker. Assumpsit. (Decided November 23, 1913. 63 South. 780.) Bills and Notes; Failure of Consideration; Jury Question.—Although the evidence would have supported a contrary finding, the action being on the note given for the purchase price of the land, it warranted a finding also that defendant was entitled under his contract to a tract of five acres, the boundaries of which were pointed cut by the grantor, which was not included in the deed tendered, and as this conflict was for the jury to reconcile, the court was in error in charging affirmatively for the plaintiff. APPEAL from Shelby County Court. Assumpsit by W. G. Parker against Columbus Francis. Judgment for plaintiff and defendant appeals. Reversed and remanded. [Francis v. Parker.] RIDDLE & ELLIS, for appellant. There were differences in the inferences which could be drawn from the evidence, and the court was in error in directing a ver dict for the plaintiff.-Drew r. Western S. & F. Co., 55 South. 997. BROWN, LEEPER & KOENIG, for appellee. The evidence of the defendant showed that he got what he bought, as the discrepancy was only about one half an acre, and the description is more or less.-Thompson v. Shepherd, 85 Ala. 611; Pearson v. Heard, 135 Ala. 348; Brassell v. Fisk, 153 Ala. 558. The court was therefore not in error in directing verdict for plaintiff. WALKER, P. J.-To this action on a promissory note the defendant, the appellant here, filed several pleas upon which issue was joined. Plea M averred: "That the note sued on has failed in consideration in this: Defendant purchased of one Will Seales a certain tract of land in Shelby county, Ala., some time in the month of January, 1911, which said tract of land was pointed out to him, together with the boundaries thereof, by said Will Seales, at the time of the said purchase; and defendant avers that he executed the note sued on to W. G. Parker, plaintiff in this cause, to secure the payment of the purchase price of said land, which was done under and by virtue of the directions and consent of the said Will Seales; and defendant avers that when he purchased said tract of land as aforesaid, the said Will Seales agreed as a part of this said purchase contract to furnish to defendant a deed to said tract of land, but defendant avers that the said Will Seales has never furnished defendant a deed to the same, and he avers that said W. G. Parker offered de [Francis v. Parker.] fendant a deed which did not describe the said tract of land, but only a part thereof, and which defendant refused to accept and did not accept; and defendant avers that, though often requested so to do, neither the said Will Seales or said W. G. Parker has ever furnished or offered to furnish defendant with a deed to said tract of land." There was evidence in the case tending to support every material averment of this plea. The jury might well have found from the evidence adduced that the land which was the subject of the contract between Seales and the defendant was identified by the description contained in a deed made by Seales to another person who had failed to consummate his purchase, and that the understanding of the parties to the contract was that the defendant was to get only the land described in that deed. But this was not a necessary inference from the undisputed evidence in the case. Under another aspect of the evidence, the conclusion would have been warranted that the defendant was entitled under his contract with Seales to a tract containing five acres, the boundaries of which were pointed out by Seales, and all of which was not included in the description in the deed to another which was referred to. The conflict in the evidence on this point made the question one for the determination of the jury. There being evidence to sustain the averments of a plea upon which issue was joined, it was error to give the affirmative charge requested by the plaintiff. Reversed and remanded. McDuffie & Sons v. Weeks.] McDuffie & Sons v. Weeks. Assumpsit. (Decided November 13, 1913. 63 South. 739.) 1. Appeal and Error; Review; New Trial.-Where the motion is that the verdict is contrary to the law and the evidence, the only question presented for review is whether or not the evidence is so decidedly against the verdict as to clearly convince the court that the verdict is wrong and unjust. 2. Same.-A verdict for the plaintiff will not be set aside on appeal on the ground that it was contrary to the law and the evidence where the evidence on the issue of payment is so nearly balanced as to be practically equal. 3. Same; Objections; Necessity.-An abuse of discretion in requiring the defendants to proceed with the trial when they were not ready cannot be reviewed where no objection thereto is shown to have been interposed. 4. Same; Argument of Counsel.-Where the bill of exceptions does not show that any objection was made during the trial to the argument of counsel or that the case was in fact argued by counsel at all, it cannot be reviewed on appeal. 5. New Trial; Review; Surprisc.—Where defendant did not raise the question of surprise in the trial court by asking that the case be withdrawn and a continuance granted for that reason, an order denying a motion for new trial on the ground that plaintiff's testimony on the trial was a surprise to defendant, was proper and not reviewable. APPEAL from Geneva Circuit Court. Heard before Hon. H. A. PEARCE. Assumpsit by Minerva Weeks against B. P. McDuffie & Sons. Judgment for plaintiff, and defendant appeals from an order of the court denying them a motion for new trial. Affirmed. C. D. CARMICHAEL, for appellant. Counsel discuss the facts in the case, and insist that they were such as to require a setting aside of the verdict, and the granting of defendant's motion for new trial. [McDuffie & Sons v. Weeks.] W. O. MULKEY, for appellee. Counsel insists in the first place that no objections or exceptions were reserved on the original trial, and that the grounds of the motion presented nothing for review. PELHAM, J.-The jury before whom the case was tried rendered a verdict in favor of the plaintiff, and the defendants made a motion for a new trial and appealed from the order overruling the motion. No exception is shown to have been reserved to any ruling of the court during the progress of the trial, and the grounds assigned in the motion for a new trial (five in number) in substance are: (1) The verdict is contrary to the law and the evidence; (2) the note sued on was paid before suit was brought; (3) the court erred in requiring the defendants to go to trial when not ready; (4) the plaintiff's testimony on the trial was a surprise to defendants; and (5) the jury was prejudiced by improper argument of plaintiff's counsel. The first ground stated for the new trial, under the well-known rulings on that subject, presents no other question here on review of the trial court's order overruling the motion than a consideration of the evidence to see if, after allowing all reasonable presumptions in favor of the correctness of the verdict, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. The controverted question of fact before the court and submitted to the jury for its determination was whether or not the note sued upon had been paid. The note was in the possession of the plaintiff bringing suit on it, and the evidence showing payment seems to be about equally balanced with the contrary evidence on that issue, so far as we are able to judge from the testi |