
    Charles Caffin v. William Scott.
    A lessor may rescind a lease where the building is used for a purpose not contemplated at the time of the contract, and such use is injurious to him.
    Where an action for the rescission of a lease, in which defendant claims damages in reeonvention, is tried after the lease has expired, though there can be no judgment of rescission, yet if defendant’s demand in reeonvention be overruled, and the evidence shows that plaintiff would have been entitled to a judgment of rescission had the trial taken place sooner, there must be judgment in his favor for the costs-
    Appeal from the Parish Court of New Orleans, Maurian, J.
    Labarre, for the plaintiff.
    
      A. Hennen, for the appellant.
   Simon J.

This action was instituted to obtain the rescission of a lease, on the ground that the property leased is used by the defendant for an object different from that for which it was intended, to wit: that instead of the defendant’s using the lower story of the plaintiff’s house as a store, he uses it as a kitchen, which causes great inconvenience to the lessees who occupy the upper stories, and who threaten to abandon the same. An injunction was obtained to prevent the further use of the property in the manner complained of.

The defendant pleaded divers matters, to show his right of using the property as a kitchen and boarding house ; complained of being disturbed in his enjoyment of the rented premises; and reconvened, by claiming judgment against the plaintiff for $1000 damages.

This suit was brought about six months after the lease had commenced, which, as alleged in the petition, was to last one year, at the rate of $80 per month ; but was tried after the expiration of said lease. The plaintiff’s cause of action had therefore ceased to exist at the time of the trial; and had it not been for the re-conventional demand, the proper course, perhaps, would have been, to dismiss the suit.

But it was found necessary to try the suit, not only to ascertain upon whom the costs were to be thrown, but also to give effect to the defendant’s reconventional plea, which he does not appear to have abandoned. The court below rendered a judgment for costs against the defendant, and he has appealed.

We have carefully examined [the evidence adduced by both parties on the trial of the cause, and concur with the judge a quo in the opinion, that the defendant’s reconventional claim is not supported by any evidence, and that the same must be dismissed. Furthermore, the evidence establishes clearly, that the plaintiff’s right of action was well founded; that the store rented to the defendant never was intended by the plaintiff to be used as a kitchen; that no such use was in contemplation at the time the lease was contracted ; that this use is injurious to the plaintiff, and inconvenient and disagreeable to his other tenants ; and that, therefore, the plaintiff would have obtained the rescission of the lease,, if the trial had taken place sooner. The injunction was ne-> cessary to protect the plaintiff’s rights and property ; and we have not been able to discover any reason why the defendant should not pay all the costs occasioned by his illegal acts, and by his unfounded reconventional demand. ,

Judgment affirmed.  