
    Charles H. Judd, Respondent, v. Herbert B. Fellows, Appellant.
    
      Landloi'd and tenant—a tenant's right of set-off, arising out of the landlord’s retaining possession of a part of the demised premises.
    
    In an action brought to recover a balance, alleged to be due upon a contract for the sale of certain feed' and also for the rent of a building which the plaintiff had leased to the defendant, the defendant testified that the plaintiff had contracted to sell to him both a coal and a feed business which the plaintiff carried on upon the premises in question, and also to lease the premises to him; that, although the plaintiff had delivered possession of the feed business and of a, part of the demised building, he had refused to deliver possession of the coal business and had retained possession of a part of the building. The testimony would have warranted a finding by the jury that the plaintiff, during the time for which he sought to recover rent, had occupied a substantial part of the búilding.
    Upon the trial, the court refused to charge the jury that the defendant was entitled to compensation for the part of the building occupied by the plaintiff. Held, that the court erred in such refusal;
    That the defendant was entitled to set off the value of such use and occupation, as he established, against the rent which he had agreed to pay.
    Appeal by the defendant, Herbert B. Fellows, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Putnam on the 24th day of October, 1895, upon the verdict of a jury rendered after a trial at-the Putnam Circuit, and also from an order bearing date the 22d day of October, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      A. M. & G. Card, for the appellant.
    
      Frederic 8. Barnum, for the respondent.
   Brown, P. J.:

The complaint in this action sets forth two causes of action: First, for a balance due upon a contract for the sale of merchandise consisting of corn, oats, feed, groceries, etc.; second, for the rent for one year of a building which was leased by the plaintiff to the defendant.

The answer substantially admitted the facts set forth in the complaint, but the defendant alleged therein that the plaintiff agreed to sell to him, in addition to the merchandise above mentioned, a coal business which he carried on at West Patterson, in Putnam, county, ahd that the defendant was to take the stock in both businesses at the market price, after the same had been inventoried. It was further alleged that the stock in the feed and grocery business was inventoried and delivered to the defendant, biit that the plaintiff refused to inventory the coal or deliver the coal business to the defendant; and damages were claimed for such breach of the contract. It was further alleged that the defendant agreed to pay $250 per year for rent of the premises for the purpose of carrying on said feed and .coal business, but that the plaintiff retained one-half of the said premises for his own use, and that the rental value of the premises actually occupied by the defendant was only $125.

In reference to the contract the.defendant testified as follows:

The arrangement was made between us that we should inventory the stock on hand at the market price; that the goods be delivered to me, I paying the fair market price for all of them, take possession and run the business for one year. I was also to have the post office. This included the building, the feed, the groceries in the building, the post office, the coal. which is on the premises right on the same track, and the scale connected with the coal business. I was to have the whole thing for $250.00 and the goods at the market price. After we had made the arrangements, we commenced to take inventory of the feed, and we went along counting the bags with feed in, estimating the weight as given in the bag. * * * After taking the inventory of the feed there was some time before I could get another move in regard to anything. I was ready and spoke of it often. * * * I then asked him for inventory of the coal, and he was not ready for that, and he wished me to wait for a time, and I waited. I had then taken possession of the store and feed business, including the post office. He wanted me to wait about the coal business. He was not ready to give it to me then. He said he would some time later. He carried that idea to me. I asked him for it after that. More than once, and he finally said that I could not have it. He did not say that until some time in the fall. Between April and the fall he kept putting me off and I did not. have it. I worked there during that year in the coal business, and there was about one thousand tons of coal sold. I am familiar with the coal business there.”

In the charge to the jury the court excluded from their consideration' the .claim for damages for the breach of the contract in failing to inventory the coal and deliver the possession of the business to the defendant, and also the claim for abatement on the agreed rent of the building; and it refused to charge the jury, upon the defendant’s request, that the defendant was entitled to compensation for the part of the building occupied by the plaintiff. To this refusal to charge the defendant took an exception.

We are of the opinion that the testimony was such that the jury might have found that the plaintiff, during the whole year for which he claimed to recover rent, retained and occupied a substantial part of the building, and that for such use and occupation the defendant clearly had a valid claim against the plaintiff, which he was entitled to offset against the rent stipulated in the agreement. Precisely what part of the building was occupied by the plaintiff, and what the value of such use and occupation was, was for the jury to have-determined, under proper instructions from the court, and it was error for the court to withdraw this claim entirely from their consideration.

For the alleged breach of the contract arising out of the refusal to deliver the coal and the coal business, the defendant failed to prove that he had sustained any damages. The questions asked and excluded by the court over the defendant’s objection, and which related to this branch of the case, did not, we think, bring the case within any rule of damages that was applicable thereto. Sufficient was, however, shown to indicate that there may exist a right to recover for such breach of the contract, should the jury find the contract to he as claimed by the defendant; and upon a new trial the defendant may be able to supply the testimony which would be essential to his right to recover.

For the errors pointed out, in refusing to submit to the jury the claim for the use and occupation of that part of the building occupied by the plain tiff, the judgment must be reversed, and a new trial is ordered, with costs to abide the event,

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  