
    Frankel v. Steman.
    
      Lessor and lessee — Quiet enjoyment — Breach and measure of damages, jury question — Charge tef jury — Remodeling and obstructing entrance — Alterations damage lessee's business — And lessee vacates at lessor's request — Lessor cannot recover rent, when.
    
    (No. 14649
    Decided May 18, 1915.)
    Error to the Court of Appeals of Hamilton county.
    The amended petition avers that plaintiff was the lessee from the defendant, for the term of two years and five months, beginning on the 1st day of May, 1907, of two back rooms on the third floor of the building known as Nos. 130 and 132 West Fifth street, in the city of Cincinnati, Ohio. The plaintiff agreed to pay to defendant, as rent for said premises, the sum of $50 per month in advance.
    •The lease contains the following covenant: “It is also agreed that if said lessee shall perform his obligations under this lease, he shall quietly have and enjoy said premises during said term, free from molestation from said lessor.”
    The amended petition further avers that prior to January 8, 1909, the defendant executed and deliver ed to The National Theater Company a lease for the first floor and main part of said premises, in violation of his covenants for quiet enjoyment of the premises leased to him, the plaintiff; that defendant authorized and permitted The National Theater Company, the lessee of the first floor of said building, to change substantially the front and the entrance of said building, leading up to the portion thereof leased to the plaintiff, thereby obstructing the entrance for several months, and permitted the said The National Theater Company to alter the vestibule, where said lessee had the right to place a case of . photographs, and also the place where said lessee had a right to place a case extending over the sidewalk, and he says that, by reason of these alterations and obstructions, his business as a photographer in said premises leased to him was interfered with, obstructed and substantially destroyed, so that he was compelled to vacate the said premises. A copy of the lease is attached to the petition, marked “Exhibit A.”
    The defendant for answer and cross-petition admitted that he executed and delivered to plaintiff the lease described in the petition; that plaintiff was to pay therefor $50 per month in advance, and that said lease further provided that if lessee should perform his obligations under said lease he should quietly have and enjoy said premises during said term, free from molestation from lessor, and, further answering, denied each and every allegation of the petition not expressly admitted.
    The defendant by way of cross-petition averred the execution and delivery of the lease described in the petition, that plaintiff took possession thereunder, that he did not pay the rent for the months of March, April, May, June, July, August and September, 1909, amounting to the sum of $350, for which the defendant asks judgment with interest from October 1 of that year.
    The reply admits that the rent for the months named in cross-petition was not paid, and avers that by reason of the breach by the defendant of the covenant of quiet enjoyment contained in the lease, no rent is due to the defendant for the months named in the cross-petition or for any other time.
    The jury in the trial court found on the issues joined by the pleadings for the plaintiff, and judgment was rendered upon that verdict. This judgment was affirmed by the court of appeals, and error is prosecuted in this court to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming the same.
    
      Mr. W. A. Hicks and Mr. James R. Jordan, for plaintiff in error.
    
      Messrs. Horstman & Horstman, for defendant in error.
   By the Court.

In an action for damages for breach of a covenant for quiet possession, the questions of whether there has been such a breach and the amount of damages suffered thereby, are questions for the jury, under proper instructions from the court.

In such action it is not error for the court to charge the jury that the landlord “had a right to remodel, alter and change the building as he saw fit so long as he did not disturb the plaintiff in the quiet and peaceable possession and use of the premises and privileges leased to him, but he had no right to obstruct, interfere with, or take away from the plaintiff in a substantial degree the beneficial. use of the stairway or entrance to the building, or to authorize or to empower any person or corporation to make changes in the stairway and vestibule that necessarily would result in obstruction and interference with and substantial injury to the plaintiff’s business.” And to further charge the jury that if it found “that at the time of the execution of the lease referred to, the entrance and vestibule as then constructed was of value to the plaintiff’s business for purposes of entrance and exit for himself and persons doing business with him. And if you further find that the defendant, or some one authorized by him, radically and permanently altered such entrance and vestibule during the term of such lease, and by" such alterations damaged the plaintiff’s business, as conducted under the lease, then the plaintiff is entitled to recover the amount of damages caused by such alterations to his business during the period of time from the commencement of such alterations to the termination of the lease.”

Nor is it error to charge that “if you find by a preponderance of the evidence as already defined to you that the defendant, or those authorized by him, did in fact interfere with, obstruct the plaintiff in his business and practically take away from him a part of the privileges leased to him, then I charge you that the defendant cannot recover any rent from the time that this condition lasted.” And in such action, where it appears by the undisputed evidence in the case that the defendant asked the plaintiff to move out of the premises before the termination of his lease, and that the plaintiff complied with this request, it is not error for the court to charge the jury that “the defendant is not entitled to rent for that portion of the term remaining after the plaintiff left the premises, for the reason that the plaintiff moved out with his consent.”

The special charges requested in this case were properly refused.

Judgment affirmed.

Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.  