Allen v. Pell

By the Court, Sutherland, J. The evidence offered by the plaintiff to shew that Mr. Pell had not complied with his agreement in finishing the house by the time stipulated, and that the premises were out of repair, was properly rejected by the judge. He ruled correctly, that if the plaintiff actually took possession of and occupied the house it was no excuse for the non-payment of rent that the house was out of repair, or that the defendant had not complied with his agreement; his remedy is by action for the breach of the agreement. The fact of talcing possession under a contract or lease creates a tenancy, and subjects the tenant to the payment of rent; and he cannot off-set any damage which may have accrued from the breach of his landlord’s agreement. This appears to be well settled. . (1 Saund. 204, n, 2. Cowp. 242. 1 T. R. 310. 11 Johns. R. 495. 8 id. 44.) Judgment affirmed.