
    No. 4739.
    Higgins & Maurer v. J. C. Wilner.
    The thing leased being destroyed in part by fire, the defendant had the right, under article 2697 of the Revised Code, either to demand a diminution of the price, or a revocation of the lease. He preferred the latter. Xn according to the defendant the exercise of a plain legal right, the court below committed no error.
    Appeal from the Fourth District Court, parish or Orleans. Lynch, J.
    
      Ootton & Levy, for plaintiffs and appellants. Lacey & Butler, for defendant and appellee.
   Wyly, J.

On the seventeenth August, 1871, the plaintiffs leased to the defendant a cotton pickery, on Tchoupitonlas street, for twelve months, at one hundred and twenty-five dollars per month, evidenced by notes of the defendant. On the seventeenth April, 1872, the leased premises were in part destroyed by fire, and on the twenty-fourth day of the same month the defendant notified the plaintiffs of the fire, and after tendering eighty-three dollars and sixty-three cents, the balance of rent due at that date, demanded a revocation of the lease and the return of the notes.

This proposition was refused and the plaintiffs brought this suit to collect the rent. The defendant set up his demand for the annulment of the lease, and prayed in recon ven tiou that plaintiffs be required to return to him the five outstanding rent notes. There was judgment for the defendant and the plaintiffs appeal.

We see no error in the judgment. The thing leased was destroyed in part by fire, and the defendant had the right, under article 2697, of the Revised Code, either to demand a diminution of the price or a revocation of the lease. He preferred the latter. In according the defendant the exercise of a plain legal right, the court below committed no error. Penn v. Kearny, 21 An. 21.

Judgment affirmed.  