Weber v. Rorer

Opinion p/y Me. Justice McCollum, A. M. Weber occupied a farm of Paul Jacoby from the first of April, 1886, to April 1, 1890, under a lease reserving an annual rent of three hundred dollars, payable quarterly. On the fourth of February, 1890, Jacoby, alleging that there was $145.70 rent in arrear on the first of January preceding, issued [490] a warrant to Clinton Rorer, sheriff of Montgomery county, authorizing him to collect the same by distraining the goods and chattels of the tenant or other person or persons, found on the demised premises. The goods and chattels of Weber were accordingly levied upon, and he brought this action of replevin to recover them. The question under the pleadings was, how much rent, if any, was in arrear at the time of the distress. It is claimed by the appellee that the appellant was in arrear for the rent which accrued between the first of July, 1889, and the first of January, 1890, and by the appellant that at the time of the distress he was not in arrear for any rent whatever. It will be seen that by the terms of the lease the total amount of rent which accrueid prior to January first was $1,125. The appellant offered to prove on the trial that, he paid to Jacoby or his agent on account of rent and in conformity with his lease the sum of $1,175.88. This offer was rejected and the appellant was restricted in his proof of payments made before July 1, 1889, to such only as referred to the rent which accrued between that date and January 1, 1890. It appears that this ruling was based on Warner v. Caulk, 3 Wharton, 193. In that' case the landlord distrained for the third quarter’s rent, and the tenant having replevied the goods, alleged that the landlord had broken his covenant to make certain repairs and improvements on the demised premises, and that by reason thereof he had sustained great damage, out of which he was willing and ready to defalk the rent due. To this the landlord replied that he had not covenanted to make the repairs and improvements as claimed. The jury were instructed that if the landlord had broken the agreements in the contract of demise on his part to be performed, the measure of damages was the difference in yearly value between the demised premises as they remained, and as they would have been if he had performed his agreements, but that only one fourth of the damages so ascertained could be deducted from the rent distrained for. This instruction was in accordance with the rule laid down in the English case of Andrew v. Hancock, 1 Broderip & Bingham, 37, 5 English Common Law Reports, 490, which is in effect that each year’s or quarter’s rent, as the case may be, must bear its proportion of the equitable defence arising from the default of the landlord. [491] In the cases cited the matters which the tenant sought to deduct from the rent were not payments on account of it, but damages caused by the landlord’s failure to perform his agreement, or taxes and paving rates paid by the tenant to save his goods from distress. These cases do not sustain the rejection of the appellant’s offer. Its fair and obvious import was to show payments on account of the rent reserved in the lease under which he occupied the farm, and that these payments extinguished the rent which had accrued prior to the distress. If previous to the first of July, 1889, the landlord had received and indorsed on this lease payments on account of rent, which equalled or exceeded the entire amount of rent accrued thereon, by the first of January, 1890, it will hardly be contended that such payments could be excluded on the ground that they did not specifically refer to rent accruing after their date. Such payments are not in the nature of a cross-demand or equitable defence arising from the default of the landlord, nor does their relevancy depend on the method of proving them. Any competent and credible evidence which shows that they wore made is as effective as the landlord’s acknowledgment of them. We have considered the case upon the offers of evidence. Whether the appellant will be able to sustain them is a question which does not now arise. All that we decide is that it was error to refuse him an opportunity to produce his evidence in support of his offers. The specifications are sustained. Judgment reversed and new venire ordered.