
    M. H. BEARDSLEY, Respondent v. S. W. MORRISON and L. D. KINNEY, Appellants.
    Lease — Covenant fob. Improvements— Lessee’s Eights Upon Refusal of Lessor — Purchase of Material — When Payment of Rent — Case at Law — Verdict When Conclusive — Plea of Former Suit Pending — How Made.
    
      Lease — Covenant for Improvements — Lessee’s Right Upon Refusal of Lessor.
    
    Where a lease of premises contains a covenant binding the lessor to make certain improvements, and he refuses, after notice from the lessee, to make such inxprovements, the lessee may make the same and charge the reasonable value thereof against the rent.
    
      Purchase of Material — When Payment of Rent.
    
    Under such circumstances the purchase and placing by the lessee, upon the premises, of lumber in value equal to the amount of a month’s rent, with the intention of making the improvements himself, is a sufficient payment to prevent the forfeiture of the lease.
    
      Case at Law — Verdict Wien Conclusive.
    
    In a case at law the verdict of the jury is conclusive as to facts, there being some evidence to support it.
    
      Plea of Former Suit Pending — How Made.
    
    A. plea of former suit pending, being a plea in abatement, must allege clearly that the same matters are in issue in both suits, in order to permit the introduction of evidence of the former suit in abatement of the latter.
    (Decided February 25, 1899.)
    Appeal from the 3d District Court, Salt Lake County, Hon. A. N. Cherry, Judge.
    
    Action by plaintiff against defendants to recover damages for unlawful and forcible ouster and for consequential damage. From a verdict and judgment in favor of plaintiff defendants appeal.
    
      Affirmed.
    
    
      J. M. Bowman, Esq., for appellant.
    Plaintiff contends that he was forcibly ejected from the premises. We submit in all candor that there is not a particle of evidence to sustain such a proposition. We •cite Brooks v. Warren, 5 Utah, 122, where this court has defined forcible entry; also 28 Cal. 202-33.
    
      Messrs. Dey & Street and W. H. Bramel, Esq., for respondent.
    Six of the errors assigned pertain to the insufficiency of evidence to support the verdict. Such assignments cannot be considered in this appeal. This is an action at law for damages. The case was tried before a jury. Questions pertaining to the sufficiency of the evidence to support the verdict are not open for review in this court. Const, of Utah, Sec. 9, Art. 8; Nelson v. S. P. Go., 15 Utah, 325; Mader v. Taylor, 15 Utah, 161; Walley v. Bank, 14 Utah, 305.
    The evidence will not be examined unless the abstract .affirmatively shows that it contains all the evidence or the substance of all the evidence touching the points at issue. White Pine Go-, v. Herrick, 10 Pac. 215; Atterbury v. By. Go., 22 Pac. 527; State v. Foreline, 37 Pac. 997; Cochrane v. Bussche, 7 Utah 233; Woods v. Courteney, 17 Pac. 745; Mandlebaum v. Liebes, 28 Pac. 1040; Siebe v. Joshua Hendy Go., 25 Pac. 14 (Cal.); York v. Portenbury, 25 Pac. 163; Hoopes v. Buford, 26 Pac. 34; Boy v. Merc. Co., 26 Pac. 996; Gullum v. Paul, 8 Pac. 187; 2 Ene. P. & P. 441, 443 and notes.
    
      It is well settled that where a lease binds the lessor to make improvements or repairs and the lessor refuses so to do, the lessee may make such improvements or repairs and set off the value of the same against the rent. Such expense operates as a payment of the rent. Westermeir v. Street, 21 La. Ann. *¡14; Myers v. Burns, 35 N. Y. 269; Wolf v. Arnot, 109 Pa. St. 473; Cooke v. Soule, 56 N. Y. 420; Fcke v. Fitzer, 65 Wis. 55; Orton v. Noonan, 30 Wis. 611.
    In a plea of another action pending the answer must show clearly that the cause of action in the first suit and the relief sought are identical with the present suit. Wilson v. St. Paul By. Co., 46 N. W. 909; Barco v. Clements, 36 Cal. 132; Vance v. Olinger, 27 Cal. 358; Mann v. Rogers, 35 Cal. 316; Lawrence v. Sterns, 79 Fed. 878, 882.
   JBartch, C. J.

This action was brought to recover damages for unlawful and forcible ouster and for consequential damages. It appears that the defendant, Kinney, owner of certain premises, known as the Everett Hotel, on September 11, 1893, leased the same to the plaintiff for one year from October 1, 1893, with the privilege on the part of the lessee to extend the lease for two years from October 1, 1894. By the terms of the lease, the lessee was to pay $25.00 per month up to January 1, 1894, and $50.00 per month thereafter. It was also provided in the lease that the lessor, within thirty days, after written notice from from the lessee so to do, should finish a certain addition to the hotel according to certain designated plans, and that upon the completion of the addition the rent should be $75.00 per month. Under the terms of the lease all rents were to be paid to defendant Morrison, and the instrument contained a clause for re-entry into possession by the lessor, and sale of tbe effects of tbe lessee in case tbe rent was not paid as provided by tbe terms of tbe lease. Tbe rent was payable in advance on tbe lOtb day of eacb month, and delinquent in thirty days thereafter.

From tbe evidence it appears that the lessee took possession of tbe premises, and in January, 1894, tbe lessor assigned tbe lease to defendant Morrison. After January 1, 1894, tbe lessee elected to extend tbe lease as provided therein, and in February of tbe same year served notice in writing upon tbe lessor and bis assignee to complete tbe addition to tbe hotel, but the addition was not completed. It appears tbe lessee paid tbe rent regularly to defendant Morrison, except for tbe month of May, which became due May 10, and, if not paid, delinquent on June 10, 1894. Instead of paying tbe rent for that month to Morrison, tbe lessee purchased lumber for tbe amount thereof, and hauled it to tbe premises for tbe purpose of completing tbe addition himself. On June 11, 1894, defendant Morrison forcibly ejected tbe lessee and took possession of tbe premises, including furniture and fixtures. Such are tbe material facts so far as we are able to glean them from tbe very imperfect record filed in this case.

At tbe trial tbe jury returned a verdict in favor ■ of tbe plaintiff in tbe sum of $472.27, and upon judgment having been entered thereon, this appeal was prosecuted.

Tbe first contention of appellant, which we will notice, is that tbe rent was not paid for tbe month of May, 1894, as required under tbe terms of tbe contract and that therefore respondent Morrison was authorized to take possession of tbe premises and declare a forfeiture of tbe lease. Under tbe terms of tbe lease, tbe lessor was bound to build or complete the addition to the hotel, upon receiving thirty days’ written notice to do so from the lessee. Such notice was given, but neither the lessor nor the assignee performed this part of the contract by finishing the addition. Their failure to do so gave the lessee the- right to make the addition tenantable in accordance with the terms of the lease, and set off the expense against the rent. The assignee was mentioned in the instrument as the party to receive the rent, was aware of the terms of the contract, which he assumed, and is therefore in no better plight than the lessor himself. The making of the improvements having been refused by the landlord after notice from the tenant, the purchase of the lumber and placing of the same upon the premises, with the intention, on the part of the tenant, to make the improvements, as provided in the contract, constituted a sufficient payment of the rent for the month of May, 1894, to prevent a forfeiture of the lease, the lumber amounting in value to the rent, and therefore the tenant was not in default, and the as-signee had no right to forcibly oust him of possession. Where a lease of premises contains a covenant binding the lessor to make certain improvements and repairs, and the lessor refuses to make such improvements and repairs, after notice from the lessee to do so, the lessee may make the same in accordance with the covenant, and charge the reasonable value thereof against the rent. 12 Am. & Eng. Enc. of Law 724-726, 748, 1005; Hexter v. Knox, 63 N. Y. 561; Myers v. Burns, 35 N. Y. 269; Cook v. Soule, 56 N. Y. 420; Ecke v. Fetzer, 65 Wis. 55; Orton v. Noonan, 30 Wis. 611; Wolfe v. Arrott, 109 Pa. St. 473; Buck v. Rodgers, 39 Ind. 222; Wright v. Lattin, 38 Ill. 293.

Appellant’s contention that the lessee’s agent voluntarily surrendered possession to the assignee, is not well taken. There is evidence to show that, upon being refused possession by the agent, the assignee broke a window and a piece off from the door, and then, being enabled to open the door, took possession of the premises, and that an employee of the assignee forcibly ejected the agent from the house.

It is clear from the evidence that the taking of possession by the assignee was forcible, and, under the circumstances, unlawful. But this being a case at law, even if we thought otherwise, still, as to this point, the verdict of the jury would be conclusive, since there is evidence in support of it.

Nor do we think the court erred in refusing to admit in evidence the files in case No. 13726. There is no plea which warrants the admission of those files. The answer simply alleges, “that the plaintiff has an action pending in the third district court against this defendant for the purpose of recovering the possession of said premises.” This allegation shows that the action pending and referred to was one for the recovery of possession of the premises— an action of ejectment, while this action is one for damages. The two actions are not founded upon the same cause of action, and therefore the former will not authorize the abatement of the latter. Where a party pleads a former suit pending, in abatement of a second suit, he should allege clearly that the cause of action of the first is identical with that of the second — that the same matters are in issue in both suits. Wilson v. St. Paul, M. & M. Ry. Co., 46 N. W. 909; Vance v. Olinger, 27 Cal. 358; Larco v. Clements, 36 Cal. 132.

We have considered the other questions presented and have found no ground for reversing the judgment.

It is therefore affirmed with costs.

BaskiN, J. and McCarty, Dist. Judge concur.  