
    [Philadelphia, February 7, 1838.]
    WARNER against CAULK.
    IN ERROR.
    Where a lessor has covenanted to make certain repairs and improvements in the demised premises, and has failed to perform his covenant, the tenant is entitled in replevin to such defalcation or deduction from the amount of the rent due as is equal to the proportionate part of the damages for the year; but he is not entitled to a deduction of the whole amount of the damage which he has sustained: Therefore, where the goods of the tenant were distrained for the third quarter’s rent, it was held, that ho could not deduct the damages which he had sustained during the quarters preceding.
    This was a writ of error to the District Court for tbe City and County of Philadelphia.
    In the Court below John Warner brought an action of replevin against Oliver Caulk.
    The defendant avowed the taking, on a distress for one quarter’s rent, amounting to $287 50, due on the 27th day of December, 1834, on a demise of the premises made by him to the plaintiff at a certain rent, payable quarterly; the first quarter’s rent having been payable on the 27th of June, 1834; and the rent distrained for being that of the third quarter.
    
      The plaintiff pleaded specially to this avowry, among other thing, as follows, viz.: — “That in and by the agreement of demise, under and by virtue of which the said John occupied the said premises in *the said avowry mentioned, and under and by virtue whereof the said Oliver claims the saidv rent in the said avowry mentioned, it was agreed by the said Oliver to and with the said John, in consideration, on the part of the said John, to be done and performed, to wit, on the day and year aforesaid, at the county aforesaid, that he, the said Oliver, would repair a break in the kilns, part of the premises demised, and build a counting-house and weigh-house on the said premises demised; and that he would well plank the wharf also, part of said demised premises, and also enclose the whole of the said demised premises with a good fence, and also put the wharf, part of the demised premises, in as good order as coal-wharves generally are in. And the said John avers, that the said Oliver did not, (although thereunto specially requested by the said John, to wit, on the day and year aforesaid, at the county aforesaid,) repair the said break in the said kilns, nor build a- weigh-house on the said premises, nor well plank the said wharf, nor enclose the said premises with a fence, nor put the said wharf in as good order as coal-wharves generally are in. And the said John avers that he thereby suffered and sustained damages to a large amount, to wit, to the amount of one thousand dollars; which said damages exceed the rent really accrued, due, and owing to the said Oliver under the demise aforesaid, out of which said damages, he, the said John, is ready and willing, and hereby offers to defalk and allow the said Oliver the said rent really due to the said Oliver, &c. according to the form, &c. &c.”
    To this plea the defendant filed the following replication:—
    “And the said defendant, as to the said plea in bar, &c. because he saith, that in and by the agreement of demise, mentioned by said plaintiff in his said plea, under and by virtue of which the said plaintiff occupied the said premises in the said avowry mentioned, and under which the said defendant claims the said rent in the said avowry mentioned, that he, the said defendant, did not agree with the said plaintiff that he, the said defendant, would repair a breach in the kilns, part of the demised premises, and build a counting-house and weigh-house on the said premises demised, and well plank the wharf also part of the demised premises, and also enclose the whole of the said demised premises with a good fence, and also put the wharf, part of the demised premises, in as good order as coal wharves generally are in; and of this the said defendant puts himself upon the country.”
    Issue having been joined on these pleadings, the cause came on to be tried before Pettit, president, on the 27th day of January, 1887.
    . In the charge to the jury the learned judge said, “ That the measure of damages, should they think that the defendant had broken *the agreements in the contract of demise, on his part to be performed, was the difference in yearly value between the demised premises as they remained, and as they would have been had the defendant performed his agreements. But the avowry in this case was for the rent of the third quarter, and the jury might deduct from it its own portion of the damages assessed, according to these principles, and that the jury must not regard either the preceding or the subsequent quarters. That the damages for the year being ascertained upon the principle above stated, the jury could not deduct from the sum avowed for more than one-fourth of these damages, being the proportionate part of this particular quarter.”
    The plaintiff’s counsel excepted to this part of the charge; and the jury having found in conformity with it, he removed the record, and assigned the following errors:—
    “ 1st. General errors.
    2d. The Court below erred in charging the jury in regard to the damages which the plaintiff in error was entitled to defalk from the defendant in error’s claim of rent, viz. ‘that the avowry in this case was for the rent of the third quarter, and that the. jury might deduct from it its own portion of the damages assessed; and that the damages for the year being ascertained, the jury could not deduct from the sum avowed for more than one-fourth of those damages, being the proportionate part of this particular quarter.’ The error pointed out in the charge is the restricted measure of damages. The contract of demise being entire, the tenant, (plaintiff in error,) was entitled to setoff the whole of the damages sustained by breach of covenants in the lease, on the part of lessor, (defendant in error,) against a claim for any portion of the rent under said demise; and the damages of a continuous breach are not to be applied exclusively as a defalcation of that quarter’s rent during which the damages accrued.”
    Mr. F. W. Subbell, for the plaintiff in error.
    The single question in this case is, whether in an action to recover a quarter’s rent the tenant can set off damages which accrued before action brought, for breach of an entire contract. The covenant for the payment of rent is entire and indivisible. The error is in supposing that there is a separate contract to pay for each quarter. In the case of Fairman v. Fluck, this question was not touched. Defalcation here would be a bar to a future action. In Bayne v. Gaylord, (3 Watts, 301,) it was held that unliquidated damages, arising from a breach of contract in respect to the building of a house, might be set off against a claim for extra work. In Heck v. Shener, (4 Serg. & Rawle, 249,) evidence of malfeasance was held to be admissible under the plea of non-assumpsit, to defeat the *action, though it was not admissible of set-off. vJeffries, (1 Serg. & Rawle, 477.) So in Shaw v. Badger, (12 Serg. & Rawle, 275,) it was held that in an action to recover the price of cattle, the defendant might set off the damages sustained by him in consequence of a breach of contract in not delivering a number of sheep purchased by him of the plaintiff at the same time. In Carter v. Carter, (5 Bingh. 392; 15 Eng. Com. Law Rep. 479,) a tenant was allowed to deduct payments made by him for ground-rent of an antecedent half-year, due to the paramount landlord. The judge here was bound by the pleadings. If the plaintiff was wrong the defendant’s counsel ought to have demurred.
    Mr. Zantzinger and Mr. GHlpin, for the defendant in error.—
    In replevin it is well settled that in strictness there can be no set-off, Fairman v. Fluck, (5 Watts, 516.) And our defalcation act in its operation, does not extend beyond the limits of set-off. The tenant then cannot reduce the amount of his rent except upon the ground of failure of consideration. 5 Watts, 516.‘ And it must be a failure of consideration in the contract out of which the landlord’s claim arises. The claim is for one quarter’s rent, not for one year’s rent, under a contract to pay quarterly; and as the failure of consideration could be only in this quarter, the damages must necessarily be only for the quarter. If the plaintiff should succeed in obtaining damages for the whole term, how could he be able to avail himself of it, if they should exceed the amount of rent ? — not by way of certificate under the defalcation act, for it does not apply in cases of replevin. It has never been held that damages on the ground of failure of consideration, could exceed the plaintiff’s claim: they may defeat it in whole or in part, Heck v. Shener, (4 Serg. & Rawle, 249); Gogel v. Jacoby, (5 Serg. & Rawle, 117,) but not exceed it. The doctrine of the plaintiff is, that it may defeat not only this claim but others. Each quarter is to bear its proportion of the damages. If the plaintiff has paid any of the quarters’ rents, without making the deduction, he must suffer for his own default and omission. Andrews v. Hancock, (1 Brod. & Bingh. 37; 5 Eng. Com. Law. Rep. 10.) The tenant is to pay for what premises he enjoys, and if the premises are not such as he was to have had, let him pay only for what he actually got and enjoyed, and no more, and this at the appropriate time. If he has paid more rent than he ought to have done, when he had an opportunity of deducting it, he must abide by his own act.
    Mr. Sublell was heard in reply.
   The opinion of the Court was delivered by

Gibson, C. J.

Though statutes of set-off are confessedly inapplicable to an avowry, it has been urged that it may be met by ^defalcation; and the argument implies a- distinction which I had not known before to be attempted. In our own statute the word set-off is not used at all; and it seems with reason, as defalcation, its synonyme, more accurately expresses the cutting of a smaller debt from a larger one before the residue is paid to the creditor. On the other hand, diminution of demand, by failure of consideration, stands not on extinction by cross demand, but on suspension of accretion by deficiency of enjoyment. Such was the ground of the decision in Heck v. Shener, and in Steigleman v. Jefferies ; and it was emphatically the long established principle that rent is the correlate of enjoyment, which reduced the quantum of it in Fairman v. Fluck. The principle is affirmed in Gilbert on Rents, 145, and fully developed in Clun’s Case, (10 Rep. 128,) where it is said that rent, being payable out of profits, grows not .due till they are taken; whence a consequence asserted there, that part eviction of the land by a stranger, is part suspension of the rent. And it has been held to follow from diminution of enjoyment without eviction ; as in Edwards v. Hetherington, (7 Dow. & Ryl. 117,) where disturbance from repairs, which deprived the tenant of his customers, was deemed a justifiable cause for quitting without notice; as was also the landlord’s neglect to repair, in Collins v. Barrow, (1 Moody & Rob. 110,) by reason of which the premises had become unsafe and unwholesome. It was, in fact, suspension, and not compensation, which reduced the rent in Fairman v. Fluck. The landlord has failed to make the premises as beneficial as he had contracted to do ; and the rent accrued in proportion to the difference. On that principle it follows in replevin, though it would not in covenant, that the deficiency of gross amount be distributed to the respective quarters in proportion to the deficiency of enjoyment in each. A quarter’s rent is a distinct duty for which debt would lie; and an avowry is as special as a declaration. Now where the avowry and distress are for the rent of a particular quarter, and the issue is on the quantum that accrued at the completion of it, the reduction must necessarily be proportionate to the deficiency of enjoyment during the period. A demand on the ground of suspension for a period not embraced in the pleadings, could be enforced only by defalcating a matter foreign to the action ; and what principle of justice or convenience is there, to require that the tenant be suffered to throw a diminution for several quarters into a single one, which would not as imperatively require that he be- suffered to throw a diminution for several years into a single one ? Or why should there be sufferance at all ? When he has not paid the increment of a previous quarter, let him pay it, when demanded, and no more; but if he has voluntarily overpaid it, or suffered too much to be recovered of him, I know not how he may regain the excess unless by action of covenant. The direction, therefore, seems to have been peculiarly proper.

Judgment affirmed.

Cited by the Court, post 365.

3 ee also, 2 Wharton, 97 ; ante 153.  