
    DANIEL GENAU v. THE DISTRICT OF COLUMBIA.
    [No. 83.
    Decided June 1, 1885.]
    
      On the Proofs.
    
    'The lessee enters under a written lease for a term of years, which expires in October, 1870, and holds over until April, 1871. During the term the lessee makes no repairs, and ultimately abandons the premises in a damaged, ruinous, and unhabitable condition.
    I.Independently of an express agreement, the law imposes upon the lessee an obligation to so treat the premises that no substantial injury be done during the occupancy, and the property be restored to the landlord unimpaired by the negligence of the tenant.
    II.The tenant is bound to make tenantable repairs, though not liable for ordinary wear and tear incident to reasonable use and occupation. Tenantable repairs imposed by law, in the absence of an express agreement, are such as keeping fences in order, replacing windows, &o.
    III. When the tenant abandons the premises in a ruinous condition, the result of damage done during his occupancy beyond the wear and tear of a reasonable use, it is a breach of his implied convenant.
    IV. The District Claims Act 1880 (21 Stat. L., p. 284) confers jurisdiction of “ all claims based on contracts made by the- levy court." If there be between the parties a contract, express or implied, the terms and obligations of which are impaired or violated by the defendant, the court has jurisdiction, though in the case of an individual defendant he might be adjudged guilty of a tort.
    Y. TheAcí4í7í July, 1864 (13 Stat. L., p. 383; Rev. Stat. D. C., § 681), which relates to tenants holding over in the District of Columbia, affects the tenure of the estate, but not the implied covenants between the parties.
    yi. When the landlord, by the exercise of ordinary ownership, might have prevented damages to the property after he knew that it had been abandoned by the tenant, he cannot recover for the result of his own negligence.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the ■court: *
    I. The claimant was the owner of the premises described in the petition, and on the 10th day of October, 1867, he leased |) the levy court of the District of Columbia said premises for a term of three years, by a written lease, which has been lost. The rent was paid monthly, as a usual thing. Said premises were used as a police station.
    II. At the expiration of the three years the occupation of said premises was continued by the authorities. Ho new letting was made. The rent due from the defendant for the time it occupied the premises has been paid. The occupation ceased about the 15th of April, 1871, without any formal notice to the claimant by the authorities of the defendant.
    III. At the time the defendant took possession of said premises they were in good tenantable condition. The lessee made no repairs during said three years nor during said occupation. At the time the defendant quit the possession of the premises they were in bad condition and untenantable.
    IY. The lessee abandoned the premises without notifying-the claimant, and when claimant discovered that the premises, had been vacated, which was in about ten days, they were in a damaged and ruinous condition and unfit for habitable purposes, having deteriorated from that time until some time in the summer of 1872. when they were condemned by the Board of Health as a public nuisance.
    Y. The condition of the premises at the time of the abandonment, to wit, the 15th of April, 1871, was not the result of the ordinary wear and use of said property, but was the result of damage done to said premises beyond the “ wear and tear” of a reasonable use of said premises, and such damage, beyond such reasonable use, is $750.
    YI. The claimant knew on the 1st of May, 1871, that the defendant had abandoned the premises, and did not want to use them any longer as a police station. He could have taken possession of the same without hinderance by the defendant, and could have prevented by such possession the damages done to the property from the time they were abandoned to the time they were declared a nuisance, as claimant could have taken possession without inconvenience to himself.
    
      Messrs. Efoilde & JDuhamel for the claimant:
    The fact of continued holding after the termination is prej sumed to be upon the same terms and obligations. (Boraston j Green, 1C Bast., 74; Biggs v. Bell, 5 T. JR., 471; Tithford v. Tyl\ 
      8 Q. B., 100; Finch v. Miller, 5C. B., 431; De Young v. Buchanan, 10 G. & <T., 149 ; JDigley v. Atkinson, 4 Gamp, 78.)
    If premises were out of repair, such, is no excuse for failure to repair. {Hart v. Windsor, 12 M. & W., 85; Chitty on Contracts, 359; 1 Parsons, Cont., 50; Payne v. Heine, 16 M. & W., 545; Bulloch v. Bommett, 6 T. B., 652; Brennoek v. Pritch-ard, 6T. It., 751; Hallettv. Wylie, 3 John., 47; Allen v. Oulver,
    
    3 Denio, 294; Phillips v. Stevens, 16 Mass.; Spence v. Ohadwick, 10 Q. B., 527; Ingle v. Jones, 2 Wall., 2.)
    During any current month of occupation the tennant was liable for the acts of strangers. (Taylor, L. & T., § 358; 4 Kent, Com., 77; Beach v. Gain, 2 Coms’t, 94; White v. Wfltpier, 4 H. & J., 392.)
    Jfr. W. P. Heath (with whom was the Assistant Attorney-General) for the defendant:
    It appears that claimant seeks to recover damages for the failure of the District authorities to give him notice, and their negligence in leaving the property exposed. This is in the nature of a tort, and the court has no jurisdiction, the jurisdiction being confined to “ all claims based on contracts made by the levy court” (21 Stat. L., 284). But it the court had jurisdiction, claimant could not recover, as he was guilty of contributory negligence, as it appears that he did not take possession and protect the property as soon as he knew it was empty, but allowed it to be exposed, with theidea of holding the District responsible. (2 Sedgwick, Meas. Dam., 349.)
    Section 681, Revised Statutes of the District of Columbia, provides for thirty days’ notice by landlord, but is silent as to the tenant. It was his duty to take possession (1 Sedg., Meas. Dam., 166), and if no notice had been given and the property needed repairs which the District should make, he might recover a month’s rent and the cost of the repairs. (Taylor’s Land, and Ten., par. 647; 1 Sedg., Meas. Dam., 396.)
   Weldon, J.,

delivered the opinion of the court:

In this case the claimant seeks to recover against the District of Columbia, for a violation of a contract of lease of certain premises let to the defendant, for the purpose of a police station, alleging as his cause of action, that the said defendant-failed and refused to comply with its agreement to repair and keep in repair tbe premises leased, and failing to take suck care of tbe demised premises as it was bound ,to do by law.

Tbe findings disclose in substance tbe following state of facts: On the 10th day of October, 1867, tbe levy court of tbe District of Columbia rented from the claimant tbe premises described in the petition. Tbe letting was by a written contract, but inasmuch as it has been lost, and no foundation for secondary proof was laid in tbe evidence, tbe findings do not disclose tbe terms of said agreement, and we are left in this case to deduce tbe rights and obligations of tbe parties from tbe implied covenants incident to tbe relation of landlord and tenant.

Tbe original letting was for tbe space of three years, and expired by the terms of its own limitation on the 10th day of October, 1870; but at tbe end of that period, by tbe act and ac-quiesence of both parties, said premises were occupied until about tbe middle of the succeeding April. The rent was ordinarily paid monthly. It appears that at tbe time tbe premises were abandoned by tbe defendant as a police statio'n they were in a ruinous condition and untenantable, and that such a condition was beyond the ordinary damage incident to a reasonable use of the same.

Independent of an express agreement on tbe part of tbe lessee, tbe law imposes upon him an obligation to treat tbe premises in such a way that no substantial injury shall be done to tbe property during tbe continuance of tbe lease; so that tbe same may be restored to the possession of tbe owner in a condition unimpaired by tbe negligent conduct of tbe lessee.

He is only bound to make tenantable repairs, and is not liable for tbe ordinary ‘wear and tear” of tbe premises, such as are incident to tbe reasonable use and occupation of tbe same. Thé tenantable repairs which the law imposes on tbe tenant, in tbe absence of an undertaking on bis part to repair, are such repairs as are required in the reasonable use and occupation of tbe premises, such as keeping fences in order, replacing windows and doors broken during tbe pendency of tbe lease. (Taylor, Landlord and Tenant, § 343, p. 292, seventh ed.)

For tbe time tbe premises were occupied, because of tbe relation of landlord and tenant, certain legal obligations arosei as to tbe duties of the parties in relation to tbe subject-mattei •of the contract, and one of those obligations on the part of the lessee was to use the premises in such manner as not to impair the property beyond the ordinary “wear and tear” of the same.

It appears from the fifth finding that, at the time of the expiration of the occupancy of the defendant, the ruinous condition of the premises was not the result of the ordinary and ¡reasonable use of the same, but was a condition of damage not incident to such use; and that being true, it involves a violation on the part of the defendant of the implied covenant not to permit the condition of the premises to be impaired beyond the ordinary damages incident to a reasonable use.

It is insisted by the counsel for the government that there is no jurisdiction in this court, because the grievance complained of was the result of a tort upon the part oí the defendant, and is not foundedon a contract between the parties. It is provided in the Act June 16, 1880 (21 Stat. L., 284), that the Court of Claims shall have jurisdiction of “all claims based on contracts made by the levy court.”

While in a case of this kind the defendant might be guilty of a tort (determining its liability from the standpoint of an individual), if there is between the parties a contract, express or implied, the terms and obligations of which are impaired or violated by the act of the defendant, then the jurisdiction of this court is complete under the provisions of the above statute.

The relation of landlord and tenant cannot arise in the absence of a contract, express or implied, and as we have already held that such a relation did exist, it is equivalent to a determination in favor of the jurisdiction of this court.

After the termination of the time for which the premises'were let, in the month of October, 1867, the occupation of the defendant, under the Act July 4, 1864 (13 Stat. L., 383; Rev. Stat. D. C., § 681), became a tenancy by sufferance, which might be terminated by the landlord by a notice in writing to quit; and it is contended by the counsel for the government that because •of that provision of the statute the common-law incident of a leasehold estate was changed.

While this statute affected the tenure of the estate, it did not «hange the legal results arising from the implied covenants existing between the parties. By operation of law the estate changed from a holding for years to a holding by sufferance, but the rights accruing anterior to the termination of the lease were unaffected by the legal effect of the statute making the holding an estate by sufferance.

It is claimed by the petitioner that the defendant is liable for all damages done to the property up to the time it was declared to be a nuisance, because there was no technical surrender of the premises. That might be true were it not for the well-known principle of law that it is the duty of the party injured, having it in his power, to take measures by which his loss may be less aggravated.

The petitioner, by the exercise of the ordinary act of ownership over the premises, might have prevented all damages to the property from the time it ceased as a police station to the time it was declared a nuisance. He knew that the defendant had, by the abandonment of the premises, in fact surrendered its possession of the premises, and it was his duty, if in his power, to take measures to prevent theinjury; and havingfailed to do so, he cannot recover against the defendant the result of his own negligence. (Sedgwick, Measure of Damages, p. 166.)

For the damages done the property during the continuance of the lease, beyond the ordinary wear and tear of the same, the defendant is responsible. The findings show that such damage is $750, and for that amount a judgment will be entered, due and payable as of the 1st day of August, 1874.  