Hagen v. Bowers , 182 Minn. 136 ( 1930 )

The appellant contends that the theory on which the judgment is affirmed is a departure from the theory of the complaint. We do not so regard it. It is true that the plaintiff claimed a tenancy for two years but established a tenancy at will. The allegations of the complaint are broad enough to include the lesser tenancy.

The distinction between this case and Hewitt v. Parmenter,181 Minn. 454, 232 N.W. 919, is clear. In that case the oral lease was repudiated before any tenancy came into existence under it. Here the tenancy at will was established.

We are asked to exercise the power of this court to order a new trial in the furtherance of justice although no motion for a new trial was made.

The circumstances under which the jury found the tenancy was terminated were not such as to appeal to the discretionary powers of a court of justice.

The petition for rehearing is denied.