Roll v. Howell

PELHAM, J. — This suit is brought to recover the balance due on a written lease or contract of rental for a certain storeroom described in the complaint. The defendant (the appellant here) filed a number of special pleas, to which demurrers were sustained by the court, whereupon the defendant filed amended pleas [175] designated as pleas E, F, G, and H, and demurrers were sustained to these plehs. Plea E does not undertake to state the facts showing an eviction, but merely states a legal conclusion, and is subject to the demurrers interposed to it. — 6 Mayfield’s Dig. p. 711, § 40. Plea F fails to aver that the acts of the landlord complained of in entering to repair the premises Avere Avithout the permission of the tenant. Taking the averments of the plea most strongly against the pleader, the act of the landlord in entering to repair set up in the plea was Avith the consent of the tenant. Plea G manifestly does not state sufficient facts to constitute either an entire or a partial eviction in law, that would be a complete defense to the action for rent. Plea H (the reporter will set out this plea), while not carefully draAvn, sets up sufficient facts to show at least a partial eviction by the acts of the landlord, and also shoAvs that the landlord took possession of the premises without the consent of the tenant, and that there was a relinquishment or abandonment by the tenant before the expiration of the term and before the time embraced within the period for which the rent accrued for Avhich suit is brought. The plea by a fair construction of the language employed in effect alleges that the defendant, as the tenant of the premises, did not have the .full enjoyment of the occupancy of the premises during the period for Avhich the plaintiff as landlord seeks to recover rent, due to the fact that the plaintiff, acting through her agent, entered and took charge of the premises, without the "consent of the defendant, to make extensive repairs. These allegations are sufficient to show a “partial eviction” as it is termed that would be a good defense to a ciaim for rent accruing under such conditions [176] thereafter, for a parial eviction by the landlord is as effective in this particular as a defense to an action to recover such rent as an entire or total eviction. — 2 Tiffany’s Landlord and Tenant, p. 1264 (e) ; Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446; 18 Am. & Eng. Ency. Law, p. 298 (2) et seq. If the tenant loses the benefit of the enjoyment of any material portion of the demised premsies by the act of the landlord, the rent is thereby suspended, for the law will not apportion the rent in favor of the wrongdoer.' — 2 McAdams on Landlord and Tenant (3d Ed.) pp. 1290, 1293. And, besides, as said in the case of Rice v. Dudley, 65 Ala. 68, “where a tenant abandons the premises leased, before the expiration of the term, the landlord is at liberty to pursue either of two courses. He may suffer the premises to remain vacant, and sue on the contract of renting; or he may enter, and determine the contract, claiming the rent due up to the date of abandonment.— Crommelin v. Thiess, 31 Ala. 412 [70 Am. Dec. 499] ; Schuisler & Donnell v. Ames, 16 Ala. 73 [50 Am. Dec. 168]. The landlord cannot take possession of the premises, and insist, at the same time, that the contract of renting is in force, without the consent, express or implied, of the tenant.” Plea H shows an abandonment of the leased premises, before the expiration of the term, and an entry and possession by the landlord, before the expiration of the contract of rental, without the consent of the defendant, and this would operate as a bar to the right of the landlord to recover the rents thereafter to become due during a continuance of this condition, and the court was in error in overruling the demurrers to this plea, although its averments might- be considered as not showing in legal effect an entire or total eviction. The act alleged on the part of the landlord shows a substantial interference by her with the ten [177] ant’s enjoyment of the premises during the period of the rental contract, and that the tenant abandoned the premises, and this would be a bar to the action, on the rental contract for the recovery of rents subsequently accruing. If it was the purpose of the pleader to set up an entire or total eviction, the averments of the plea should allege facts from which it would definitely and certainly appear that the tenant’s relinquishment of the premises was in consequence of the wrongs of the landlord, which acts, taken together, would have the legal effect of a total eviction. — 1 Tiffany’s Landlord and Tenant, 1157, 1221; 2 Tiffany’s Landlord and Tenant, 1258, et seq.; Crommelin v. Thiess, 31 Ala. 412, 70 Am. Dec. 499. The assignment of error based on the court’s ruling with respect to the plaintiff’s answers to the interrogatories propounded to her by the defendant not being sufficiently full is not well taken. This is a matter of discretion with the irial court, and, for aught that appears in the transcript, the court found that the answers of the plaintiff were not evasive, and that the defendant’s motion was not sustained by the facts. Neither the questions nor the answers to the interrogatories are set out in the transcript, and there is no data furnished this court from which it could say that the trial court did not find against the defendant on the facts in passing on the motion. The defendant’s objections to the introduction on the trial of the deposition taken in behalf of the plaintiff, and letters as exhibits thereto, were not well taken. It was shown that this deposition and the exhibits were used on a former trial of the case, and the fact that the exhibits and some of the leaves were detached for convenience in handling it on the former trial, at the [178] suggestion of the trial judge and with the consent of all parties, would not destroy the efficacy of the deposition and its exhibits as evidence to be used on another trial of the case, unless there was some question as to the identity and gemiineness of the detached parts of the deposition or its exhibits. It is affirmatively shown by the bill of excep tions that this deposition and its exhibits introduced on this trial were the same as used on the previous trial, and no question seems to have been raised on this point, but the, fact seems to be conceded. The bill of exceptions does not purport to set out all of the testimony, and this court will presume, if necessary, that there was other testimony sufficient to warrant the trial court in making the ruling it did with respect to the admissibility of the depositions, and, besides, the motion to suppress does not appear to have been made before entering upon the trial. For the error of the court in sustaining demurrers to plea H, as above discussed, the judgment appealed from must be reversed. Reversed and remanded.