
    BUTTERFIELD vs. STRAUSS ET AL.
    Where a tenant conditionally consents to an act of the landlord "which would amount to an eviction if done without his consent, a failure to perform the condition hy the landlord does not constitute an •eviction.
    Error to Common Pleas of McKean County. No. 31, July Term, 1884.
    This was an action of replevin for certain articles distrained for rent. The charge of the Court was as follows, per:
    Olmstead, P. J.
    Mr. Butterfield, the plaintiff in this case, was in possession of certain premises in Bradford city, in this county, as a tenant of these defendants, under a lease by which he agreed to pay certain rents. Defendants allege that rent is due for the months of December, 1880, and January, 1881, and they issued a landlord’s warrant to collect the rents for these two months.
    The plaintiffs allege there was no rent due upon the lease, for the reason that the defendants, for the term of these two months I have spoken of, prevented him from the possession and evicted him from the possession of the property. This eviction, according to the evidence of the plaintiff, consisted in the defendants erecting stairs along the passageway alongside of this building, by reason of which water falling upon the 'stairs run into these rooms, and made them untenantable for the period of two months. We think that the testimony of the plaintiff makes such a showing of an interference with his right, as, under the recent cases, constitutes an eviction, [but it appears from the undisputed evidence that the stairs were put up with the consent of the plaintiff. This being the case, we think there was no legal eviction here, and that the plaintiff’s defence against the payment of the rent fails, and that your finding-must be in favor of the defendant, ] that .there was rent due, and you must find the amount of the rent due in your verdict, and find the value of the property, that was replevied.
    [Mr. Butterfield says that he consented to the putting up of the stairs, but upon the condition that they were to close the roof overhead, and they didn’t do so. This may seem a hard rule, but if they had consent to put the stairs up, and did put them up, there is no legal eviction, although the defendant did not subsequently shut off the water which he agreed to, according to the evidence of the plaintiff.] But the plaintiff has his remedy for the failure to perform on their part, in another form. We say to you, therefore, that your verdict must be for the defendants. In addition to finding for the defendants you must write out in your verdict that there was rent due, and state how much rent was due. You will recollect the evidence upon the subject of how much this property was rented for per month, $85 if I recollect right. This rent was not paid for two months, to which you can add interest. You must also state in your verdict the value of the goods that were replevied. This is not a very important matter in your finding, nevertheless it is your duty to find that. I don’t recollect just what the evidence was upon the subject, but I think it was some $1,200.
    Now you must find for the defendant that there was rent due, and then state in your verdict how much rent was due, and then state what the value of the goods was that were replevied.
    The jury found a verdict that there was $201 due by the plaintiff to the defendants. The Court discharged the rule for a new trial in the following opinion, per:
    Olmstead, P. J.
    Strauss, Kahn and Lehman, three of the defendants, issued a landlord’s warrant against John A. Butterfield, the plaintiff, to collect rent' on certain demised premises in the city of Bradford, in McKean County, for the months of December, 1880, and January, 1881, amounting to $170. Butterfield replevied the goods distrained and denies that there was rent in arrear, claiming that he was evicted from the premises for the two months for which the rent is claimed by the defendants to be in arrear. It is not claimed that the plaintiff was actually ousted from the possession of the premises, but that the use of the rooms was of no value to him for the period covered by the defendants’ claim on account of the erection of a stairway by the defendants on the outside of the building, whereby the water was caused to run into the rooms demised and rendering them untenantable. This, under the authority, of recent cases, we held to be an eviction, but the difficulty in the way of the plaintiff arose from the fact that it appeared on the trial from all the evidence in the case that this stairway was erected with the consent of the plaintiff. The evidence discloses that the stairs had been erected by the defendants at a period somewhat earlier and were torn down by the plaintiff. The defendants proposed to rebuild them, and after some negotiations upon the subject the plaintiff gave his consent to their being rebuilt. On page 17 of the report of the case the plaintiff testifies: “I told them they could put up the stairs with the understanding that they should enclose the roof overhead.” This agreement the plaintiff states in substance several times during his direct and cross-examinations.
    Being of the opinion upon the trial that this stairway having been erected with the consent of the plaintiff there was no legal eviction, we directed the jury to find for the defendants.
    It is unnecessary to cite authorities to sustain the position that when the entry by the landlord is with the consent of the •tenant it is not an eviction, nor do we conceive that the entry in this case became an eviction, from the fact that the defendants did not keep their agreement by, shutting off the water overhead. An eviction takes place when a tenant is deprived of the possession of the demised premises, and the dispossession must be by judgment of law or by an adverse ouster. Wherever it is shown that the entry is by the consent of the tenant, the transaction loses the essential character of an eviction. We are not persuaded by the able argument of the plaintiff’s counsel that we were in error in holding that there was no legal eviction in this case.
    On the trial it was shown by competent proof that the plaintiff had brought suit before an alderman of the city of Bradford, under the Act of 1810, to compel the defendants to defalcate their rent. On the trial before the alderman the plaintiff was defeated and the full amount of rent claimed was found to be due. This proceeding was not appealed from. This-finding (if the Justice had jurisdiction) was conclusive between the parties, and definitely and positively fixed the amount of rent; Kessler vs. McConachy, i Rawle, 444.
    We withdrew this record from the jury for reason that it appeared to us, in the hurry of the trial, that the Justice had no jurisdiction, the amount in controversy exceeding one hundred dollars, and the recent Act of Assembly enlarging the jurisdicton of the Justices not extending to cases of rent. We were probably correct in this conclusion, but we are not entirely satisfied that the proceeding before the Justice did not conclude the plaintiff. He brought the suit in a forum selected by him; ought he not to be estopped from asserting a want of jusisdiction in the Court to which he resorted in this collateral proceeding ?
    The rule to show cause why a new trial should not be granted in this case is discharged. .
    Butterfield then took a writ of error, complaining of the portions of the charge printed in brackets.
    
      W. B. and J. B. Chapman, Esqs., for plaintiff in error,
    argued' that actual physical eviction was not necessary; Doran vs. Chase, 2 W. N. C, 609. The permission to erect the stairs was-only conditional, and the condition not being complied with, it cannot avail the defendants; Wright vs. Antwerp Pipe Co., 12 W. N. C., 325. There was an eviction here; Hoeveler vs. Fleming, 91 Pa., 322.
    
      Messrs. Stone & Weil, contra, argued that the testimony of' the plaintiff showed he had a claim against defendants; but it is irrelevant in this case, as there can be no set-off in replevin; Beyer vs. Fenstermacher, 2 Wharton, 95; Anderson vs. Reynolds, 14 S. & R., 439; Fairman vs. Fluck, 5 Watts, 516. Where there is no actual eviction, but an interference with the beneficial enjoyment of the premises, he must abandon the premises or he will be bound for the rent; Pendleton vs. Dyett, 4 Cowan, 581; Edgerton vs. Page, 20 N. Y., 281; Dewitt vs. Pierson, 112 Mass., 8; Boston & M. R. R. vs. Ripley, 13 Allen, 421; Lawrence vs. French, 25 Wend, 443.
   The Supreme Court affirmed the judgment of the Common Pleas on May 26th, 1884, in the following opinion:

Per Curiam.

The evidence is unquestioned, that the stairs were built with the consent of the plaintiff. The fact that the landlord omitted to construct a proper covering to them, whereby the plaintiff’s possession and enjoyment of the premises was interferred with, was not such an eviction as to work a suspension of of rent.

Judgment affirmed.  