
    JACKSON vs. EDDY and others.
    5. íf a lessor by his wrongful act defeats the enjoyment of the property by the lessee, th% latter may abandon the possession of the premises and exonerate himself from liability to pay rent.
    APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.
    Eager & Hill for appellant.
    The judgment ought to be reversed for the following reasons :
    1st. Because the condition in which the premises were, when leased to tVe defendant) was not afterwards changed, and the defendants before they entered, knew the situation of the premises, the dampness in the rear of the store, and agreed lb repair, by reason of which they had no right to abandon for any cause existing at the time of their entrance into possession. Westlake vs. De Graw 25 Wen. N. Y. 669.
    2d. There was evidence showing the occupancy of defendants during the third quarter) their control of the premises, that they offered them for rent, and the court erred in refusing to leave the questions to the jury arising upon this evidence as asked by plaintiff in the 1st and 3d instructions.
    3d. The court erred in instructing the jury, that the circumstance of leaving th'e keys with the boy (not plaintiff’s agent) which were 'the same day returned, was sufficient to operate as a surrender of the premises and exonerate the defendants from the rent, by reason of the dripping of the salt and tar, because the defendants after that paid rent of s'econd quarter, and Occupied and exercised control over the premises and oiler ed them for rent.
    4th. There was no evidence to support the last clause of the 1st instruction given by the Court, “ and offered to surrender the possession to the plaintiff.” The keys were given to a boy not the plaintiff"’s clerk or agent.
    5th. The court errred in refusing to give the instructions asked by the plaintiff, which put the questions in the case as to occupancy and eviction and surrender of possession fairly and legally to the jury.
    The authorities cited by plaintiff, are Taylor’s Land and Ten. 174,183 and 297; Surplicé vs. Farnsworth 49 Eng. Com. Law Rep. 576 ; Sutton vs. Temple 12 Meeson & Welsley (Ex.) 52 and Hart vs. Windsor 12-Mecsor. & Welsley 68.
    
      Todd for appellees, insists :
    1st. That they were evicted by the wrongful -act ■of the'appellant and thereby released from all liability for rent upon the lease or otherwise. 8 Oowen 727, 3 Campbell 513, 25 Wend. 445, 4 Phillips Ev, p. 58.
    2d. The appellant ought not to recover any thing upon the count for use and occupation.
    1st. Because no recovery can he had upon this count except where the relation of landlord and tenant exists, either by an express or implied contract. ;3 Mo. Rep. p.286; 14 Mass. 93; 6 J. R. 46 ; 13 -do. 240. In this case this relation is proved by an express contract which excludes an implied one. But it has been shown that there can be no recovery upon the express contract.
    2d. Indebitatus assumpsit for use and occupation is a purely equitable action and a recovery therein must be ex equo et bono, 13 Wend. 488. In this case the appellees by the wrongful act of the appellant were deprived of, and lost all beneficial use of the premises for the quarter sued for. To recover in-such a case would be‘contra boms mores. 8 Cow. Rep. 731, 737; 1 Denio Rep. 37, 41.
    3d. As further evidence that the appellant cannot have the benefit of any implied contract with the appellees the appellant b.y his note to 'the appellees accompanying his return of the key to them, declared be would abide by the lease.
    4th. From the nature of the case the eviction was necessarily a total one and therefore as there could not be any apportionment of the rent, so as the appellees never re-occupied, nor were unwilling that the -appellant -should occupy nor were in his way, therefore there can be no recovery upon a quantum meruit.
    
    3d. As there was a total eviction by the appellant and therefore from the nature of the case, no occasion for a surrender and as the appellees never re-occupied nor did or said any thing in opposition to or inconsistent with the appellants occupying, but were always willing that he should j the instructions of the court were substantially correct and covered the law and the merits of the case and the court therefore did not err in giving them, nor in refusing those of the appellant.
    4th. The verdict and judgment were for the right party and therefore the court did not err in refusing the motion for a new trial.
   McBride, judge,

delivered the opinion of -the court.

This was an action of assumpsit brought by Jackson against Eddy in the St. Louis court of common pleas. The declaration contained three counts: the first two were upon a letting in writing, not under seal, from the appellant to the appellee of a certain cellar and room next above, of a store in St. Louis from 1st Feb. 1845 until 1st Nov. following, being nine months, for $487 50, payable quarterly the sum of $162 50. The third count was indebitatus assumpsit for $375 owing said appellant by said appellee for the use of said premises See. The sum claimed in the suit was $162 50 for the last quarter’s rent.

The defendant pleaded, 1st, non assumpsit, 2d, that the plaintiff had evicted and turned defendant out of the possession of the premises— issue to the second plea.

A verdict was found for the. defendant, when the plaintiff moved for a new trial, assigning the usual reasons, which was refused, and he excepted and brings the case here by appeal.

The facts of the case, as we gather-them from the bill of exceptions, are as follows:

Jackson rented the premises in question for the term- and' sum above mentioned to Eddy, who agreed to make all the repairs which he deemed necessary, and to return the premises-, at the expiration of the lease. Eddy took possession under-the lease, and occupied until about the 1st' August following, when he sent the key to the plaintiff 5's room, and it was delivered to a hoy about 14 years old, who gave it to the plaintiff on his return to the store. Plaintiff returned the key wi-th a note to the defendant, saying that he would abide by the lease. The defendant then- put a card on the door “ To let—apply to J. P. Eddy & Co.”' and retained the key until the expiration of his tei’m. There was- some conflict in the evidence as to the condition of the store : it appears, however, that the plaintiff occupied the room overhead as a grocery store— that the dripping of the salt, tar &c. in store occupied by him passed through the floor, and upon the sugar hogsheads, brooms &e. in store acc-upied by the defendant below : that the defendant complained to the plaintiff, who endeavored to prevent it by sprinkling saw dust on the floor above, which, however, only stopped the leakage temporarily. The room was about 100 feet long, and the leakage extended about 25 feet over the back end of the room-. The plaintiff occupied- the upper-room as a wholesale grocery store prior to and at the time he rented to the defendant the room below and the cellar. The condition of the room below remained in about the same condition it was when the defendant rented it, except that occasionally the leakage from the salt and tar was worse than at other times.

The plaintiff asked twelve instructions, embracing much of the common law doctrine governing the relation of lessor and lessee, which the court refused, and gave to the jury the two following instructions :

If the jury find from the evidence that the store leased by the defendants of the plaintiff -was rendered unfit for use as a store, by reason of leakage from the part of the building occupied by the plaintiff, and continued untenantable for the same reason after the defendants had remonstrated with the plaintiff, and that, previous to the time for which rent is claimed, the defendants had abandoned the premises to prevent injury to their goods from the leakage aforesaid, and offered to surrender possession to the plaintiff—they will find for the defendant.”

“Jf the jury find from the, evidence the facts supposed in the above instruction, fhey will find for the defendant, although it should; appear from the evidence that the defendants retained possession of the key after it was refused by the plaintiff, and offered the store for rent.”

What acts done by a lessor will amount to an eviction and authorize the lessee to surrender, and acquit himself of liability to pay rent, appears not to be very clearly settled in. the books. Some courts have held that an actual eviction of the lessee fr.om the premises leased,i either by a title paramount to the lessors, or by the lessor himself,, would alone enable the lessee to resist the payment of rent; because it iiS s.aid, if the wrongful act of the lessor does not actually oust the lessee of ppssession, he may be compensated by an action of trespass for aqy injury done to his possession. Other courts, have gone a step beyond this,, and have held that a partial eviction, that is, an eviction from, a part of the premises leased by the landlord, will authorize the lessee to abandon and discharge him from liability for rent: whilst others, have decided that any act of the lessor which defeats the enjoyment of the property by the lessee is a good bar to the demand for rent, provide^ the lessee abandon the possession in consequence of such wrongful act of the lessor. These different opinions underwent a review by the court of errors of New York, 8 Cow. 728, when the latter doctrine wqa maintained as being most rational and equitable.

The consideration of the lessees, undertaking to pay rent, is the quiet,, peaceable and indisputable possession of the premises leased, and is, in its nature, a condition precedent to the payment of rent. If the lessor by any wrongful a,ct disturbs that possession which he should-protect and defend; he thereby forfeits his right,, and the lessee may abandon the possession of the premises leased, and thereby exonerate himself from liability to pay rent.

In this case, the court by its instruction submitted the question to the jury to find whether by the conduct or acts of the plaintiff, the store-, room occupied by the defendant was rendered unfit for use as a store, and that, in. consequence thereof the defendant had surrendered the possession. The jury having found these facts, their verdict was properly given for the defendant.

We do not deem it necessary to comment on the several minor, points, raised in.tile case. The main question involved was fairly put to the jury, and we see no ground for disturbing their verdict. ' Wherefore the-judgment of the circuit court ought to be affirmed, and, the other, judges qoq.cur.ring,.the same is affirmed..  