Cheuvront v. Bee

Dent, Judge: Joseph Cheuvront, plaintiff, instituted an action of debt upon a promissary note of three hundred dollars, due for rent of the Grant House, bearing- date October 3, 1892, against M. C. Bee et al., defendants, in the circuit court of Doddridge county, and obtained a judgment thereon for the sum of one hundred and sixty-nine dollars and seventy-nine cents. Defendants obtained a writ of error, and now rely on the following assignments: (1) The court erred in overruling the demurrer to the declaration ; (2) in rejecting the two special pleas tendered by defendants ; (3) in refusing to admit the testimony offered by defendants ; (4) in overruling- the motion to set aside the verdict and grant defendants a new trial. The only matter urged in support of the first assignment is the failure to allege a consideration for the note. This is wholly unncessary. Bart. Law Prac. p. 106, § 12; Peasley v. Boatwright, 2 Leigh, 195; State v. Harmon, 15 W. Va., 122. Part of the syllabus in the first case cited is, “In debt on promissory note, held, plaintiff need not aver in declaration, or prove, consideration, though defendant may go into evidence touching consideration.” The last three assignments are all dependent on the same legal questions, and therefore can all be considered together. The defendants, in their special pleas, set out that the consideration for the note in controversy was for rent of an hotel, secured by a lease, in which the plaintiff had covenanted to repair ; that he failed to do so; that defendant M. C. Bee notified him to make the repairs, and, having waited a reasonable time, made them himself, — and asked that the same, fully itemized, might be offset against the rent. To the plea of payment was also attached an itemized account of these repairs, but the court refused to allow any evidence in relation thereto to go to the jury. The sole question thus presented was as to whether defendants had the right to have recouped against the rent the repairs made by them, which the landlord had stipu 105 lated and covenanted to make. If so, the pleas tendered were^ a sufficient notice of recoupment, and should not have been rejected, and the evidence in support of them should have been admitted. The plea of recoupment need not be in any particular form, so that it is sufficient to give the plaintiff full notice of the various items of damag-es relied on by defendants. Nor is it necessary to be verified by affidavit, as required in case of pleas tmder s. 5, c. 126, Code. It is in its nature a plea of limited offset, and yet it may include unliquidated damag-es, but it is wholly confined to the transaction which gave rise to the rent demanded. In 12 Am. & Eng. Enc. Law, 748, the law as to landlords is stated as follows: “Where the landlord has agreed to repair, and does not do so, it is no defense in an action to recover the rent. The tenant’s remedy in such case is an action on the landlord’s covenant to repair, or he may set off or counterclaim his damages, or he may make the repairs himself, on failure of the landlord after a notice, and deduct the costs from the rent, or he may abandon the premises if the repairs are not made at the time agreed upon, provided he does so at once after default of the landlord.” Tayl. Landl. & Ten. § 330; 1 Ping. Real Prop. 609, 612; 6 Rob. Prac. 399; Wat. Set-Off, 592; 22 Am. & Eng. Enc. Law, 343; Lindley v. Miller, 67 Ill. 244; Burroughs v. Clancey, 53 Ill. 30; Holbrook v. Young, 108 Mass. 83; Lewis v. Chisholm, 68 Ga. 40; Block v. Ebner, 54 Ind. 544; Kiernan v. Germain, 61 Miss. 498; Mayor, etc. v. Cooper, 49 N. Y. Super. Ct. 409; Prescott v. Otterstatter, 85 Pa. St. 534; Calhoun v. Pace, 37 Tex. 454; Vandergrift v. Abbott, 75 Ala. 487; Varner v. Rice, 39 Ark. 344; Breese v. McCann, 52 Vt. 498. “Where a landlord has agreed to repair the demised premises, and does not do so, the tenant has several remedies. He may abandon the premises, if by reason of the nonrepair they are rendered untenantable, or he may make the repairs, and deduct the cost from the rent. The tenant may also sue for damages.” 12 Am. & Eng. Enc. Law, 727. Id. 1003: “The landlord is not bound to make repairs unless he covena,nts in the lease to make them. But when he does covenant to make repairs, and no time is specified in which to make them, he must make them within a reasonable time, so that the lessee may have the bene 106 fit of them; or, if the lessor fails or refuses to make repairs after he has covenanted to do so, the tenant may make them, and recover the expense from the landlord.” Where the landlord covenants to repair, and neglects to do so, after having been notified, the tenant may, after a reasonable time, make the repairs, and charge the landlord. Hexter v. Knox, 63 N. Y. 561. A tenant may make the necessary repairs, and deduct the expense from the rent. Lewis v. Pepin, 33 La. Ann. 1417. NU debei is the general issue in an action of debt on a note not under seal, or rent. 2 Tuck. Comm. 101, 106. Payment is a special plea. Id. 103. The tenant, however, having the right to make the repairs at the expense of, and charge them to, the landlord, and deduct them from the rent, could regard them as payments on the rent, and file an account thereof with his plea of payment. Or he could file his special plea of re-coupment, in its nature a plea of offsets, limited to such sums as he had the right to recoup against the rent. The note sued on not being sealed, or importing a consideration, the defendants had the right to rely on failure of consideration, or show in any manner that they did not owe the debt, without verifying their plea. The fact that the lease was under seal makes no difference, as it is only regarded as an inducement, and does not operate as an estop-pel, but the enjoyment of the premises is the real foundation of the action. Hence nil debei is á proper plea, tinder which defendants may make any defense which will defeat the action, or show that they do not owe the debt, by reason of payment or otherwise. In such case the pleas ten_ dered or filed must comply with s. 4, c. 126, Code, in these words: “In a suit for any debt, the defendant may at the trial have allowed against such debt any payment or set-off which is so described in his plea, or in an account filed therewith as to give the plaintiff notice of its nature, but not otherwise.” The word “set-off,” in this section, necessarily includes the word “recoupment,” in so far as it requires a description of the sums to be recouped; but the right of recoupment does not depend on the statute, for it existed at common law, before the law of set-offs was enacted. The conclusion, therefore, is that the circuit court erred in rejecting defendants’ special pleas, and in 107 refusing- to allow them to prove their offsets in recoupment of the rent sited for; and therefore the judgment is reversed, the verdict of the jury set aside, and a new trial awarded the defendants, and the case is remanded for further proceedings.