
    SENAC vs. PRITCHARD.
    Dis.
    May, 1833.
    APPEAL FROM THE COURT OF THE PARISH AND CITY OF NEW-ORLEANS.
    The provisions contained in the 2267th and 2269th articles of the Louisiana Code, relate to cases where the lessee is not in fault, and cannot be extended to a case where he violates the contract.
    An absence of proof of an unnecessary averment in the petition does not defeat the plaintiif’s right of action.
    Payment by a lessee does not aifect his right to avoid the lease because certain stipulated repairs have not been made on the premises.
    This cause came on to be heard on a second appeal. The petition states that the plaintiff with his family removed into a house of the defendant who promised to repair the apartments and out houses, and fit the premises so as to make a comfortable residence, and that he had not complied with that promise.
    The lease signed by the parties in their own words, “ Witnesseth, that Richard O. Pritchard hath and doth hereby let unto the said Doctor Senac, the dwelling situate on Bien-ville-street, for the term of one year, to begin on the first day of December, 1830, and to end on the first day of December, 1831, for the sum of eight hundred and forty dollars payable monthly.”
    The plaintiff continued to reside in the house until January, 1831, when a partition wall having been prostrated by a storm, and the defendant refusing to repair it, and the house being in an untenable condition, he removed.
    The defendant denied the allegations of the petition. The jury having found a verdict in his favor, and judgment having been accordingly rendered, the plaintiff appealed.
    This court remanded the cause to be tried de novo, for reasons stated in its opinion. Vide 2 La. Rep. 160.
    On the second trial, judgment was rendered for the plaintiff for one hundred and fifty dollars. The defendant appealed.
   Poetee, J.

delivered the opinion of the court.

This action is brought by the lessee, against the lessor to obtain the rescission of a contract of lease, on the allegation, that the tenement is not habitable for want of repairs which the defendant should make, and which he promised to make.

Damages are claimed for the breach of the contract. The petition also charges that the plaintiff has paid all but a small portion of the rent, and that he is willing to pay that.

The cause was submitted to a jury in the court of the first instance, who found that the facts authorised a dissolution of the lease, and assessed the plaintiff’s damages atone hundred and fifty dollars.

The court after rejecting an application for a new trial, gave judgment in conformity with the verdict, and the defendant appealed.

The facts we think fully justify the conclusion to which the jury came as to the right of the plaintiff to have the lease annulled. The amount of damages was a matter of which they were better judges than we are, though we have a controlling power over them even on that matter, when their conclusions are directly and plainly opposed to the weight of evidence. Such, however, is not the case here. We have been referred to article 2667 and 2269 of the La. Code, to show that damages are not due in a case like this. The pro-vjsjons contained in these articles relate to causes where the *essor *s n°f in fault, they are exceptions to the general prin" cipl°” And there is no ground whatever for extending [the rules laid down by them to cases where the lessor violates his contract. It was argued that the plaintiff had averred in the petition that he had paid the rent up to a particular time, and that there is no proof to be found of his having done so. The plaintiff need not have stated this, and the want of proof iQ support of it cannot defeat his action. The entry on premises under a contract of lease, and the remaining in possession under a promise that they shall be put in repair, does not preyent the lessee from avoiding the lease when he finds these repairs will not be made. ment of the rent cannot aflect this right, unless so far as the . . . 7 , fact of paying rent is some evidence that the property was x _ ¶ worth, even in the state the lessee held it, the sum stipulated for its use. The benefit of that presumption the defendant Payment or non-pay-had under the pleadings.

The provisions 2367ti“an<i2269tk coae,es relatero Sir 'isTot^n bo'extoaded^o °a lates the contract,

An absence 0f cessary^avennent cfoest! notpdeS right of action'5s

Payment by aies-Ms right to avoid the lease because certain stipulated repairs have not been made on tho premises.

Eustis and Sterrett, for áppellant.

Schmidt, for appellee.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed with costs.  