
    John G. Worthington v. Philip Young.
    A stipulation m a lease that the tenant may remove any improvements h« may make on the rented premises, does not entitle suoh tenant to set off the value of such improvements, where they have been recovered, in ejectments, against an action for mesne profits.
    Trespass for mesne profits, from Hamilton.
    This-suit is brought to recover the mesne profits of a lot in Cincinnati, the plaintiff having obtained judgment in ejectment. 6 Ohio, 335. Upon trial to a jury, a verdict was obtained by the plaintiff for $1,030. The defendant’s counsel moved for a new trial, and the motion was reserved for this court. The motion is, “and the defendant moved the court to set aside the verdict and grant a new trial in this cause, because the court erred in rejecting evidence offered by the defendant.” The defendant had held possession of the lot under a lease made to him by Hargraves and wife, made in April, 1816. The fee in the lot was in the wife. Hargrave died in February, 1833. This lease was not executed as a deed, and this court has heretofore decided that the term expired with the life of Hargrave. 6 Ohio, 313.
    There was a clause in the lease providing that the tenant *“ should be at liberty to remove at pleasure all new buildings put by him on the premises.” The building on the lot was burned partly down, pending the ejectment, and repaired by the defendant. After verdict in ejectment, application was made to have the improvements valued under the occupying claimant law, and overruled by the court.
    Fox, in support of the motion for a new trial, insisted:
    That the defendant offered to prove to the jury, “that the improvements made by him and left on the premises were worth as much, or nearly so, as the rent of the premisos,” and that the court erred in rejecting this evidence. He contended that the action for mesne profits was an equitable one, admitting every kind of equitable defense in which expenditures, made in valuable and lasting improvements, may be offset against rents.. The damage to the owner, by being kept out of possession, is the rent he would have received, less the amount of the valuable improvements, although the allowance for improvements can not go beyond the rents claimed. He cited 2 Johns. Ch. 441, 442; 4 Cow. 168; Ad. 215; 8 Wheat. 81, 82; 2 Wash. C. C, 165.
    H. Stow, for plaintiff:
    Contended that the proof was abundant on the trial, that the improvements made by the defendant were inappropriate to the situation of the lot, of no intrinsic value, and were removed as worthless. They were made in his own wrong, and his only remedy under the lease was to remove them, which he refused to exercise. The case in 4 Cow. 166, decides that even a bona fide purchaser of the fee, on being ejected, could only claim allowance out of the rents for “ permanent, useful, and beneficial improvements.”
    Wright and Walker, on the same side, insisted :
    I. That since the passage of the occupying claimant law, no tenant has a right to set off to the suit for mesne profits, after eviction, his expenditures for improvements,'though made in good faith.
    2. That law provides a way by which all such claims could *be directly asserted and adjudicated. And certainly no tenant is permitted to apply for relief under that law, and failing, then, to set off his claim against the rents, as in this ease. They reviewed the evidence, and contended that the jury did allow the value of the materials, and so reduced their verdict to the sum found, and therefore the verdict should not be disturbed. The evidence was received, pro forma, and ruled out as inadmissible under the lease. It appeared that the building was burned down twice while defendant occupied, the last time pending the ejectment, and its repair then was in his own wrong; and that he refused to remove the materials under the clause in his lease.
   Judge Wood

delivered the opinion of the court:

The motjon for a new trial is extremely vague and indefinite ; and it may be difficult, after the lapse of so much time, to recall the precise state of facts, as they occurred at the trial. The counsel do not agree, and we repeat there is no. statement with the files to remove the difficulty, as the judges who sat at the trial have not their minute? present, and must depend on recollections alone. In the. ejectment, the lease from Hargrave and wife, defective in its execution, was held not to pass the legal possession of the wife, who owned the fee, for any period beyond the life of her husband. The plaintiff recovered under a subsequent conveyance of the fee by Hargrave and wife. This lease contained a stipulation that the ■defendant should be permitted to remove, at the expiration of the lease, any improvement he should erect on the premises. Evidence, on the trial for mesne profits, was introduced to show that he was notified to do so, but neglected.

The counsel for defendant claim to have offered in evidence on the trial to show, that while the defendant, he made valuable and permanent improvements on the premises, in order to have the amount set off against the rents and profits. The plaintiff’s counsel think the proof offered only tended to show that the defendant had incurred expense in making the improvements, that it was admitted, and was abundant to show, that the improvements made added nothing to the intrinsic value of the lot, were neither beneficial nor permanent, nor suited to the location. If I do not greatly err, the evidence offered was objected to, and admitted, reserving the question, and afterward ruled out. The defend.ant’s counsel suppose it was refused, because it did not recognize the principle that improvements might be set off against the rents '*and profits, and that in this respect the court erred. The court did not intend to express any doubt that such set-off might be made in a proper case, and we think we did not. Such is the law in New York. 2 Johns Ch. 441; 4 Cowen, 168. In Pennsylvania. Addis. 218. And it hag been so decided in the Supreme Court of the United States, in a Kentucky case. 8 Wheat. 81. The authorities concur in the position that the improvements to be allowed must be “ beneficial, useful, and permanent.” The evidence offered to the jury did not, in our view, show such improvements as could be legally set off against the plaintiff’s demand j and this has led the plaintiff’s counsel also into error, as to the reasons for taking this proof from the jury. Upon the last hypothesis, the decision could not be sustained, because the character, as well as the value of the improvements, were questions of fact for the jury, and upon slight evidence would have been left to their judgment. Our impression is — and in the decision of the question before us, that must be our main guide — that the evidence was rejected, because it was inconsistent with the clause in the lease, which has been referred to. The defendant, by this contract with Hargrave and wife, was at liberty to remove all new buildings, •which he should put upon the premises, at pleasure. In this he was not prevented, but desired and notified so to do. By this, stipulation, we then thought he had contracted as to the mode of compensation for any improvements he should make, in the privilege of removing them at pleasure. It was, therefore, doubtless the'understanding of the parties — and such we held the covenant, implied in the case — that no other erection could be placed upon the premises but such as were removable, and that the lessor in no other mode should be held to make compensation. The court, adheres to that opinion, and holds that the evidence was properly rejected, or taken from the jury, Motion overruled, and judgment, on the verdict.  