Kiernan v. Germain

Campbell, C. J., delivered the opinion of the court. An accurate statement of the law applicable to the case made by this record is contained in Wood’s Landlord and Tenant 816, in these words: “If a landlord covenants to put premises in repair, and the lease is to commence in the future, the performance of the covenant by the landlord is treated as a condition precedent to the payment of rent; and if the premises are not repaired at the time when the term begins the tenant need not enter under the lease, but is discharged therefrom. But if under such circumstances the tenant goes into possession he is treated as waiving the condition precedent and must pay the rent, whether the repairs are made or not; but when the landlord agrees to repair before a certain day which does not arrive until after the term begins, an entry by the tenant does not operate as a waiver, and if the repairs are not made at the time agreed upon the tenant may abandon the premises and is not chargeable with rent for the time he actually occupied, but he must avail himself of the right to abandon at once, and if he remains in possession under the lease for any length of time he cannot abandon the possession because of such breach.” This quotation seems to be fully sustained by the adjudications referred to in the notes of the book mentioned and other authorities we have examined, and tested by it the instructions, of the court to the jury are free from objection. Accepting as true that repairs were stipulated to be made before the term was to commence (1 January, 1882) and that the appellant was by such promise induced to remain in possession, he did not exercise his right to abandon the premises with sufficient promptitude. He remained about three months in possession, and in the absence of a sufficient explanation of that must be held to have lost his right to abandon the premises because of the failure to make the repairs. The extent of his right was to recoup the demand for rent because of depreciation of the [504] value of the rent by reason of the breach of the agreement to repair, and that was distinctly recognized by the sixth instruction for the defendant below. The verdict of the jury was manifestly wrong on the case as presented by the record. It was contrary to the evidence and the instructions of the court. It is indisputable that the leased premises were surrendered by the tenant to the landlord, and were accepted and enjoyed by the latter, and ive are not able to discover on what principle rent may be collected of the tenant after this surrender and acceptance. The tenant made known his purpose to leave the premises and the landlord made no objection, but seemed to acquiesce in the removal and gave direction where to leave the keys, and on the very day of the departure of the tenant obtained the keys from the person with whom the tenant left tliem by direction of the landlord, and moved into the vacated house and continued to occupy and advertised it for sale, offering immediate possession to a purchaser. No hint was given the tenant that there iras objection to his leaving or that an attempt would be made to hold him for rent afterward. A new trial should have been granted, and for the error of refusing it the Judgment is reversed and a new trial granted.