
    No. 3545.
    Mrs. M. E. Winn v. J. F. Spearing.
    The defendant was not justified in refusing to pay rent to plaintiff, on the ground that the house he leased from her was not put in repair, according to contract. His remedy was to put his lessor in default and make the repairs, deducting the amount thereof.
    Under this view of the case, the ruling of the judge a quo, refusing to hear testimony as to the repairs that were necessary, was correct.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.
    
      Desaneon, Cotton & Levy, for plaintiff and appellee. J. H. Ferguson, for defendant and appellant.
   Morgan, J.

Plaintiff leased to the defendant a dwelling for ten months, commencing on December 1, 1870.

She brings this suit for nine months rent, and ten per cent., the agreed attorney’s fees in case of suit.

The lease is admitted, but defendant claims that by his contract the house was to be put in good repair prior to the first of February following, which he says was not done.

We do not think him justified in occupying the house free of rent because it was not put in repair. His remedy was to put his lessor in default and make the repairs, deducting the amount thereof. Under this view of the case the ruling of the judge refusing to hear testimony as to the repairs that were necessary, was correct. The appeal was evidently taken for delay.

Judgment affirmed with ten per cent, damages for a frivolous appeal.  