
    Elfenheim et al. v. Von Hafen.
    Appeal from judgment entered on verdict in favor of plaintiff.
    
      J. M. dc T. B. /Seaman, for defendant (appellant).
    
      /Samuel Shasbourger, for plaintiff (respondent).
   Ehrlich, Oh. J.

The action was to recover back a deposit of $500 paid on a contract for the purchase of real estate, on the ground that the title was incumbered by an unexpired lease of record, uncanceled and unsurrendered. There was no doubt about the existence of the lease and that it constituted such a defect in the title that the vendee could not be required to take. It was claimed by the defendant that the lease had been surrendered, and was, hence, no incumbrance. The facts respecting the alleged surrender went to the jury, and they found against the defendant thereon. The evidence sufficiently sustains the finding. It was not a case in which the court could have directed a verdict in favor of the defendant. The $150 for searching the title was properly allowed as part of the damages.

The exceptions are without merit, and the judgment appealed from must be affirmed, with costs.

Newburger, J., concurs.

Fitzsimoxs, J. (dissenting).

The undisputed testimony shows that the lease referred to was surrendered and accepted, and such surrender and acceptance is sufficient in law.

It was, therefore, the duty of the trial justice to direct a verdict for defendant, as requested by defendant. It was error not to do so.

The judgment should be reversed and new trial ordered. Judgment affirmed.  