(after stating the facts). We have copied in the statement of facts that part of the lease in regard to taking the stumps off of the land. It is the contention of the plaintiffs that under the terms of the lease that the defendants were only to have rent-free the land from which they took the stumps off level with or below the surface of the earth during the year 1916. On the other hand it is the contention of the defendants that they could take the stumps off at any time during the term of • the lease. They insist that the lease failed to mention any specific time in which to remove the stumps. The court in its instructions to the jury limited the time to January 1, 1917. This action of the court is assigned as error.
We think the construction put upon the contract by the court was correct. Such construction seems to be borne out by the language of the lease contract. It provides that the tenants are to have the free use of all the land that they take the stumps off of level with or below the surface of the land for the year 1916, hut are to pay rent thereafter. The year 1916 was the first year of the lease and it seems to have been the intention of the parties to require the stumps to he removed or cut off during that year. This is shown by the fact that the tenants are to pay rent thereafter. It is not reasonable that it was the intention that the tenants should have the land rent free for 1916, and have the balance of the term within which to remove the stumps. It was the manifest intention that they should only have rent free the land from which they took the stumps. If they did not remove the stumps during the year 1916, it could not be known how much of the land they were to have rent free. On the other hand the rent was not due until the end of the year and if the stumps were removed during that year, at the end of the year it would be known exactly how much of the land was to he free from rent.
*231There was a sharp conflict in the testimony between the plaintiffs and defendants as to how many acres of the land had been cleared of stumps during the year 1916; but this question was submitted to the jury under the principles of law above announced. The jury returned the following verdict:
“We, the jury, find for the plaintiff and fix the value of the corn to which plaintiffs are entitled in the sum of $200.”
The court rendered judgment upon the verdict in the alternative. It adjudged that plaintiffs have and recover of the defendants the 225 bushels of corn sued for, or in the event that same is not delivered to plaintiffs that they recover of the defendants the sum of $200.
It is insisted that this was error because the verdict of the jury might have been based upon a less number of bushels than 225, the amount sued for. Appellants did not make this a ground of their motion for a new trial and under our rules of practice can not raise that issue on appeal.
Moreover there was no dispute between the parties as to the number of bushels of corn in the crib and we think the form of the verdict indicates that the jury found for the plaintiffs for the amount of corn sued for and fixed its value at $200.
Therefore, the judgment will be affirmed.