Mazzie v. Woolly

LEVY, J. (after stating the facts as above). The proposition of appellant is, in effect, that under the pleadings and the facts he was entitled to recover rent for the three months used and occupancy of the building by the appellee, and that the court erred in adjudging otherwise. We think the proposition should be sustained. The parties expressly covenanted as to the repairs, and such covenant therefore constituted the measure of liability of the respective parties thereto. The rent agreement stipulated the letting to be “from month to month,” and, .as found by the court, “conditional on Frank Mazzie repairing the roof of the building and making it leak proof.” Construing the covenant here to be, as it is, in the nature of a condition, that the tenant would rent the building upon the condition that it was made leak proof, the tenant, as a legal consequence, would be authorized to annul the agreement and to'vacate the premises at any time, and thereby escape further liability for rent in case the landlord did not perform his covenant to make the roof leak proof. In such case the landlord, in virtue of his failure of performance, would not he in a legal position to compel the continuance of the rent agreement after the time the premises were thus vacated, for it is not a continuing contract to rent the building “from month to month,” if the covenant of repair is not fully performed, and the tenant especially contracted to rent the building subject to the condition, or “conditional” upon the covenant or agreement to repair the roof and make it leak proof. According to the facts, though the appellee did not vacate the building and thus escape liability for the rent from that date on, while he notified the landlord in January, 1924, that he would not “pay further rent until the roof be repaired,” he nevertheless, as admitted, continued in possession of the building, using and occupying it to the same extent as before done during the previous 15 months, and the court does not find, nor does the evidence establish as a fact, that the building during those three months was rendered unfit for use for the purposes to which it was devoted by the appellee. Further, the court does not find, and there is an absence of any evidence showing such to be the fact, that there was a lessened rental value of the premises by reason,of leaks such as appellee claims here; neither is there any counterclaim for damages' as offsets to rents. Appeliee relied entirely upon a general denial for pleading. In view of the pleadings and facts, appellee was liable for the rent for the three months’ admitted use and occupancy of the building. The appellee’s reason for'not paying rent for the three months in suit was, as stated by him, “because he (appellant) would not fix the building; that was my reason for refusing to pay.” And the court, it seems, based his conclusion of nonliability for rent upon the ground that the breach of the covenant to repair the roof exonerated the tenant from payment of any rent, although the tenant used and occupied the building during the months of January, February, and March, in the same way and to the same extent as during the 15 previous months. It is not the law applicable to the facts that liability for any rent was suspended and not enforceable merely because the landlord failed to perform the agreement, the default not rendering the building unfit for use and occupation. The judgment is reversed, and judgment is here rendered for appellant for the amount of rent sued for, with a foreclosure of the lien, in virtue of the distress warrant, and costs of both trial courts. The appellee to pay costs of the appeal.