
    J. L. Piper and R. D. Piper, Appellees, v. I. C. Fletcher and Chas. Ramsey, Appellants.
    1 2 Landlord and Tenant: Construction of covenant to repair. Where a lessor lets a building for a particular purpose, and covenants to repair it, he must put it in such a state of repair as the business requires, whether the defects existed at the date of the lease, or arose from defects in construction., or from general dilapidation.
    3 Brbach of covenant: Rights of lessee. Where leased premises are untenantable and unsuitable for purposes for which they were rented, owing to the failure of the lessor to repair in accordance with an -express covenant, the lessee may abandon the premises and have cancellation of the lease.
    4 Cancellation of lease: Tender to pay rent due. The fact that the lessee failed to pay rent due on abandonment of the premises will -not preclude a recovery in a suit for cancellation of the lease on account of the premises being untenantable, where a tender ■ was' made before the commencement of suit, and the petition averred a readiness to pay all unpaid rent due..
    
      Appeal from Lucas District Court. — How. F. W. Eichel-BERGEB, Judge.
    Saturday, December 21, 1901.
    Suit in equity to cancel a lease, and to enjoin defendant Ramsey from prosecuting an action against the plaintiffs for the recovery of rent before a justice of the peace of Lucas county. The trial court granted the relief asked, and defendants appeal.
    
    Affirmed.
    
    
      J. A. Campbell for appellants.
    
      Stuart & Stuart for appellees.
   Deemer, J.

January 20, 1898, plaintiffs leased of the defendant Fletcher a brick storeroom in the town of Oakley for the term of five years at the agreed yearly rental of $16'2.'50. The following is a true copy of the lease: “Oakley, Iowa, Jan. 20, ’98. J. O. Fletcher, party of the- first part, leases to R. D. Piper and J. L. Piper, parties of the second part, the new brick storeroom, f20x60 feet,-situated in the village of Oakley, county of Lucas, and state of-Iowa, 'for a'period of 5 years from March, 1898, at an annual rental of $162.50; the same to be paid monthly. The said room to be furnished with counters, shelves, etc., -and kept in repair by party of the first part. J. C. Fletcher. E. D. Piper. J. L. Piper.” The building was in course of construction at the time the lease-was executed,, and was not completed and ready for occupancy until about March 2, 1898. Fletcher represented that he would finish the storeroom in first-clSss shape; would fit it with adjustable bracket shelves, and with counters and drawers suitable for a general country store. When plaintiffs moved-into the building they found but one rough coat of plastering on the walls, which was soft and would easily crumble; that the counters were made of green elm-lumber and rough pine boards; and that there was no drawers as promised. Plaintiffs objected to these matters, and defendant informed them that, the fixtures were temporary; that he had purchased other good shelving, which he -would put in;, and that he would paper the walls. These promises were never fulfilled. Thereafter, and about January 1, 1899, Fletcher sold the premises to- his co-defendant Eamsey, and plaintiffs attoonrned to him. After his purchase, plaintiffs demanded of Eamsey that he malee the repairs as promised; but he refused to do so, claiming that he was not bound by the covenants in the lease. Plaintiffs claim that during the years 1898, and 1899 their goods were seriously damaged by sand and dirt falling from the imperfect plastering, and that in September of the year 1899 the walls began to crack and spread áway from the joists; that these cracks increased in number and size, and that the walls so spread as that the ends of the'joists on the second floor became plainly visible; that the lower joists at one end of the building became rotten, and some of them broke down, causing the floor to settle in places from 8 to 10 inches; and that this process continued until about the 14th of October, 1899, when they vacated the building and surrendered the same to the defendants because of its untenantable and unsafe condition. After giving notice to defendants of the vacation of the property, plaintiffs commenced this action to cancel the lease. After the commencement of the suit, defendant Ramsey brought action against plaintiffs before a justice of the peace to recover the rent alleged to be due. Thereupon plaintiffs secured a writ of injunction restraining the prosecution of that action.

Much is said in argument about implied covenants between landlord and tenant, but as there was an express covenant to repair in this case, and an agreement as to' now the room should be furnished, this discussion is en~ tirely foreign to the case. Where a lessor lets a building for a particular purpose, and covenants to repair it, it is his duty to put it in such a state of repair as the business requires; and it is not important whether or not the defects existed at the date of the lease, or arose from defects in construction or from general dilapidation. “Good repair and good condition at all times is the' fair intent of the agreement.” Myers v. Burns, 35 N. Y. 269; Bass v. Rollins, 63 Minn. 226 (65 N. W. Rep. 348); Bentley v. Taylor, 81 Iowa, 306; Ward v. Robertson, 77 Iowa, 159.

With these rules as to the construction of the covenants-settled, the next question is the effect of a breach thereof. That the tenant may recover damages for breach of covenant to repair is well settled. He may also make the repairs himself, and charge the cost of the same to the landlord, or he may’ recoup his damages in an action by the landlord for rent. The covenant .to pay rent and the covenant to repair are independent, however; and failure of the landlord to repair does not work a forfeiture of the rent, where the tenant remains in the possession and occupancy of the premises. Young v. Burhans, 80 Wis. 438 (50 N. W. Rep. 343). But if the landlord fails to repair, and in consequence the premises become untenantable, the tenant may abandon them and escape liability for rent. Bissell v. Lloyd, 100 Ill. 214; Bostwich v. Losey, 67 Mich. 554 (35 N. W. Rep. 246) ; Lewis v. Chisholm, 68 Ga. 40. To warrant an abandonment, however, it must be shown that the premises became untenantable by reason of the landlord’s failure to comply with his agreement. Prescott v. Otterstatter, 85 Pa. St. 534; Blake v. Dick, 15 Mont. 236 (38 Pac. Rep. 1072, 48 Am. St. Rep. 671) ; Moore v. Gardiner, 161 Pa. 175 (28 Atl. Rep. 1018). It is conceded that Pamsey, the purchaser from Fletcher, was bound by the covenants in the lease, and that his failure to repair is of the same effect as if he had been the original lessor. These principals of law are well established, and we need call attention to but one other before going to the facts, and that is the effect of plaintiffs’ tailing possession with knowledge of some of the defects. In Swift v. Hotel Co., 40 Iowa, 323, it is expressly held thaf the tenant’s taking possession of the property with knowledge of the defects and without objection will not bar his recovery of damages. In the instant case the tenants made objection when they took possession, and were promised that the der fects should be remedied.

With the rules of law settled,, we now turn to the facts, and find that we have to go through a so-called abstract of 672 pages to settle the single proposition, were the premises untenantable, dangerous to life or property, or otherwise uninhabitable, when plaintiffs abandoned them? This so-called abstract is no abstract at all. It is nothing more or less than a verbatim reprint of the transcript, containing the questions to the witnesses and the answers thereto, and every detail of the trial as disclosed by the translation of the shorthand reporter’s notes. The whole case ought to have been presented in an abstract of not more than 50 pages. We have patiently gone over this transcript, although not obliged to do so, and, without setting forth the evidence on which we rely, content ourselves by stating that we reach the same conclusion on the facts as did the learned district judge. The premises were untenantable and unsuitable for the purpose for which they were rented when the plaintiff abandoned them; and the lease should be canceled, unless it be for the reason stated in appellants’ argument, to-wit, that plaintiffs failed to pay the rent due when they abandoned the room, and before commencing this suit. The evidence shows that plaintiffs before commencing suit made a tender of $6.38 to the defendants, which they claimed was the amount due as rent, and that they kept the tender good by depositing that amount with the clerk of the courts. They also averred in their petition a readiness to pay all unpaid rent due on the lease down to •October 16, 1899. The answer was simply a general denial, and a prayer that the lease be declared to be in full force and effect. As the suit is in equity, averment of a readiness to perform is all that was necessary. Clapp v. Greenlee, 100 Iowa, 587. But, as the covenants were independent, we are disposed to hold that plaintiffs may have cancellation without paying the rent. See Drago v. Mead, 30 App. Div. 258 (51 N. Y. 360). Itds agreed, that if the, judgment and decree in the main case stand the in junctional decree shall also be affirmed. This disposes of the claim that without proper tender the injunction will not lie.

The decree is in all respects correct, and it is affirmed.  