
    20108.
    BLUM v. BURKE et al.
    
    Decided September 6, 1930.
    
      Hall, Orice & Bloch, Ellsworth Hall Jr., for plaintiff in error.
    
      Brock, Sparks & Bussell, contra.
   Bell, J.

In the present suit by a landlord to recover rent of a tenant who vacated the premises and claimed that lie was evicted by reason of the creation of a nuisance by another tenant in an adjacent apartment, the evidence was conclusive that the landlord had no information or notice as to the character or conduct of the other tenant until after the defendant had abandoned the premises; and the defendant did not contend upon the trial that his abandonment was conditional or temporary, but the facts and circumstances as disclosed by the evidence authorized the inference that such abandonment was in fact final and irrevocable, and was so declared to the landlord at the time. It thus appeared that any action which the landlord might have taken thereafter to eject the other tenant would have been futile as restoring the relations between file plaintiff and the defendant under the lease contract; and that if the defendant had the right to rescind the rental agreement and claim an eviction upon the ground asserted, his action in so doing was premature, in that the landlord neither had nor was given any previous notice of the unsatisfactory conditions, so that he might have taken steps to correct the same, assuming that he owed a legal duty to the defendant to do so. In these circumstances, the trial judge was not bound to find that the defendant had been constructively evicted from the premises; and it follows that the court did not err in rendering judgment in favor of the plaintiff and against the defendant for the amount of the rent sued for.

Moreover, upon the question of notice, the evidence further authorized the inference that at the time the defendant abandoned the premises he notified the plaintiff landlord only that the other tenant was a person of bad character and had in the past been ejected from other buildings; and notice of this fact alone was insufficient to charge the landlord, as a matter of law, with knowledge of the existence of the nuisance alleged to have been created, although the other testimony might have established without dispute that such nuisance did in fact exist. The case is here upon the general grounds only; and it follows from what has been said, that, whether or not the creation of a nuisance by the other tenant might have authorized an abandonment of the rented premises by the defendant under other circumstances, this court can not hold in the instant case that the finding and judgment of the trial court was contrary to or unsupported by the evidence.

Judgment affirmed.

J enlcins, P. J., and Stephens, J., concur.  