
    [Philadelphia, January 29, 1838.]
    PETERSON against HAIGHT and Another.
    IN ERROR.
    1. The law is now settled in Pennsylvania, that in replevin a set-off is inadmissible in the sense in which that term is commonly used; but under the defalcation act the tenant may in replevin deduct from the rent due, the damages he may have sustained by the landlord’s breach of covenant in the same lease, relating to the demised premises, and constituting part of the consideration of the rent.
    2. Where a lease recited that the lessee was to make certain alterations and improvements in bulk windows, &e., and that the lessor agreed to contribute a certain proportion of the amount, and at the expiration of the lease he was either to receive back such proportionate sum, the lessee leaving the premises as he received thenq or to take the improvements made by the lessee at a fair valuation, with the deduction of such proportionate sum; and after the expiration of the term, no valuation having been made or attempted, the lessor sold the premises with the improvements to a stranger, and distrained upon the goods of the tenant for the rent in arrear, it was held, in replevin by the tenant, that he could not sot off against or deduct from the rent due, the value of the improvements or damages for taking them.
    On a writ of error to the District Court for the City and County of Philadelphia, the case.was as follows:
    John W. Peterson brought an action in replevin in that Court against Charles Haight and William P. Horner. The declaration complained of the taking of the plaintiff’s goods in a certain dwelling-house and drug store in the city of Philadelphia, on the 10th day of July, 1885. The defendant Haight avowed for rent arrear, viz. the sum of $269 17, a balance of one year’s rent, ending on the 3d of June, 1835, due by one Washington Jackson to him *as tenant under a certain demise of the premade to the said at the rent of $285 per'annum, payable quarterly. The other defendant made cognizance as Bailiff.
    To this avowry the defendant pleaded, inter alia, “ that the defendants ought not, &c., because on the 3rd day of June, 1823, the said Haight, with his own proper hand signed and delivered unto one Alfred Drake, a lease in writing, of the place in which, &c. in the following words, to wit:
    
      “ Charles Haight leases to Alfred Drake his house at the north-east corner of Seventh and Spruce streets, for the full term of six years, at the annual rent of $285, payable quarterly in money of the United States. The dwelling part of the house is to be occupied by a family, and the store as an apothecaries’ shop. At the expiration of the above lease of six years, Alfred Drake has the privilege of renewing and continuing the lease for six years further on the same terms. As Alfred Drake is at some expense in painting, repairing and fitting up with new doors, bulk windows, &c. Charles Haight agrees to contribute fifty dollars towards such repairs of the premises, provided they amount to one hundred and sixty dollars, and in that proportion if the repairs do not amount to so much as one hundred and sixty dollars; but Charles Haight is not to be liable for any repairs beyond the above proportion of the limited sum of one hundred and sixty dollars. At the expiration of the lease Charles Haight is either to receive back the above-mentioned fifty dollars, Alfred Drake leaving the premises, respecting doors and windows, as he receives them, or to take the improvements made by Alfred Drake, at a fair valuation, with the deduction of the fifty dollars. Alfred Drake is to leave the premises generally in as good repair as at the time he receives possession of the same; they being now perfectly tenantable.”
    And the plaintiff saith, that under and by virtue of the above-recited lease, the said Alfred Drake entered upon the above described premises, the place in which, &c., and expended in painting, repairing and fitting up with new doors, bulk windows, &c., a large sum of money, viz. the sum of $350, and afterwards on the 30th of September, 1828, for a valuable consideration assigned and transferred to one Washington Jackson all his right, title and interest in the above recited lease and improvements. And the plaintiff further saith, that the said Charles Haight did renew the said lease to the said Washington Jackson for the further term of six years from the 3rd of June, 1829, according to the terms and conditions of the said lease; and afterwards, on the first day of October, 1830, the said Washington Jackson, for a valuable consideration, assigned the above recited lease and improvements to one Jonas Green, and the said Green held and occupied the said premises under the said lease, paying the above reserved rent unto the *said Charles the 23d day of June, 1834, on which day, Haight, until +V\v» n trolnflble consideration, he assigned all his interest in the said lease and improvements to the plaintiff; and the plaintiff further saith, that at and after the expiration of the said lease, viz. on the 8th day of July, 1835, the said Charles took the said bulk windows, doors, and other improvements so made and affixed to the premises by the said Alfred Drake, and so assigned and transferred to the plaintiff, and sold and assigned and transferred the same to one Christopher Marshall: and the plaintiff saith that the said doors, windows, &c., at the time they were so taken and sold by the said Charles, and at the expiration of the said lease, and at the time of taking aforesaid, viz. on the 10th day of July, 1835, were worth, at a fair valuation, a sum of money exceeding the amount alleged to be due to the said Charles for rent, viz. the sum of $300; and the plaintiff further saith, that at the expiration of the said lease, and at all times thereafter, he was willing and offered, and is now willing and offers to submit the said bulk windows, doors and other improvements to a fair valuation, according to the terms of the said lease, and that he has often demanded from the said Charles payment for the same, which the said Charles has refused and still doth refuse; and the plaintiff is ready and willing, and now offers, as he often hath done before, to set off the value of the same, and the sum of money due to the plaintiff for the same from the said Charles, and the damages which he, the plaintiff, has sustained by reason of the refusal of the said Charles to pay for the same according to the conditions and terms of the above-recited lease, against the sum claimed by the said Charles for rent and mentioned in his avowry aforesaid.”
    To this plea the avowant demurred generally; and after argument the Court below gave judgment for the defendant.*
    A writ of error was taken, and on the return of the record the following errors were assigned.
    “ 1. The Court should have allowed the defalcation, or equitable payment set forth in this plea.
    2. The Court erred in deciding that the defendants might dis-train and avow for rent due from Washington Jackson, after he had assigned, and after the expiration of the lease.
    3. Upon an examination of the whole record, the judgment should have been for the plaintiff.”
    
      Mr. Whitman, for the plaintiff in error,
    cited Steigleman v. Jeffries, (1 Serg. & Rawle, 477); Read v. The Bank of Newburg, (1 Paige’s Chan. Rep. 218); Murray v. Williamson, (3 Binn. 135); Wolf v. Beales, (6 Serg and Rawle, 244); Beyer v. Fenstermacher, (2 Whart. Rep. 95); Fairman v. Fluck, (5 Watts, 516).
    Mr. G. M. Wharton, contra,
    
    cited Stephens on Pleading, 526; Wilkinson on Replevin, 74; Babington on Set-off, 24; Comyn on Landlord and Tenant, 258, 262; Grey v. Cuthbertson, (2 Chitty’s Rep. 483).
    
      
       Dor tlie opinion of the District Court on this case, sec 1 Miles, 250, {Peterson v. Haight.)
      
    
   The opinion of the Court was delivered by

Sergeant, J.

The law is now settled in Pennsylvania, that in replevin a set-off is inadmissible in the sense in which that term is commonly used: but that under our defalcation act, the tenant may, in replevin, deduct from the rent due to the landlord, the damage he may have sustained by the landlord’s breach of a covenant in the same lease, relating to the demised premises, and constituting part of the consideration of the rent. Gray v. Wilson, (4 Watts, 39); Fairman v. Fluck, (5 Watts, 516); Beyer v. Fenstermacher, (2 Whart. 95).

In the present case, the act of the landlord in taking the bulk windows, &c., appears to have been done, not under the covenant in the lease, but independent of it altogether. Eor the provision in the lease is to take them at a fair valuation, with the deduction therefrom of the $50 which the landlord was to ■ contribute. Clauses of this kind are intended to give the landlord an option either to take the improvements on paying for them, or to permit the tenant to remove them after the expiration of Ms term, leaving the premises in their original state. And that is, I think, clearly the design of this covenant. 110. Haight is either to reqeived back the above-mentioned fifty dollars, Alfred Drake leaving the premises, respecting doors and windows, as he receives them, or to take the improvements made by Alfred Drake at a fair valuation, with the deduction of the fifty dollars.” Then before they could be taken by the landlord under this covenant, (whoever had the right under it,) something was to be done — a valuation was previously to be made by men chosen in some way or other, or agreed on by the parties. These clauses, it is true, are sometimes, as here, so imperfectly expressed, as not easily to be executed, if the parties are on hostile terms. But that is not a sufficient reason why they are to be rejected altogether. Where parties choose to insert them in their agreements, they must abide by them as they are. It was therefore the duty of the tenant under this lease to have procured a valuation, by a mutual choice of men, in a reasonable time after the expiration of the lease — or at least to have offered to the landlord to do so — and if *the landlord refused, then to take away the articles he had put up, from the premises, and restore the premises to their original condition, first paying back the fifty dollars. Here the second lease expired on the 3d day of June, 1835. The tenant did nothing, but left the articles on the premises until the 8th day of July, five weeks afterwards, when they were taken and sold by the landlord. This may have been a tort, though as to that I give no opinion, as it may depend on different considerations; but if it were, the tenant might bring his action of trespass de bonis asportatis, or trover, against the landlord, and recover damages for sueh injuries as he sustained.

It is well settled, that an independent tort committed by the landlord, cannot be made the ground of defalcation by the tenant in replevin — nor, indeed, by a defendant in any action.

As to the second error, we are of opinion that it does not arise on this record. The avowry is for rent in arrear from Jackson as tenant. The replication does not deny this tenancy by Jackson; or that the rent was due and in arrear from him. It in effect confesses these facts and avoids them by setting up a right of defalcation for a claim against the landlord, wMch the plaintiff was willing, and offered, and still offers to make. The . proceedings in the Court below on the other'issues are not before us, and cannot be inquired into on this record.

Judgment affirmed.

Cited by Counsel, 4 Wharton, 227.

See also, post, 19S.  