170 Mass. 26 (1897), Smith v. Mcenany

Citation:170 Mass. 26, 48 N.E. 781
Opinion Judge:HOLMES, J.
Party Name:SMITH v. McENANY.
Attorney:[48 N.E. 781] Berry & Upton, for plaintiff. Henry M. Rogers, for defendant.
Case Date:November 27, 1897
Court:Supreme Judicial Court of Massachusetts
 
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170 Mass. 26 (1897)

48 N.E. 781

SMITH

v.

McENANY.

Supreme Judicial Court of Massachusetts, Suffolk.

November 27, 1897

COUNSEL

[48 N.E. 781] Berry & Upton, for plaintiff.

Henry M. Rogers, for defendant.

OPINION

HOLMES, J.

This is an action upon a lease for rent and for breach of a covenant to repair. There also is a count on an account annexed, for use and occupation, etc., but nothing turns on it. The defense is an eviction. The land is a lot in the city of Boston, the part concerned being covered by a shed which was used by the defendant to store wagons. The eviction relied on was the building of a permanent brick wall for a building on adjoining land belonging to the plaintiff's husband, which encroached 9 inches, by the plaintiff's admission, or, as his witness testified, from measurements, 131/2 inches, or, as the defendant said, 2 feet, for 34 feet along the back of the shed. The wall was built with the plaintiff's assent, and with knowledge that it encroached on the demised premises. The judge ruled that the defendant had a right to treat this as an eviction determining the lease. The plaintiff asked to have the ruling so qualified as to make the question depend upon whether the wall made the premises "uninhabitable for the purpose for which they were hired, materially changing the

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character and beneficial enjoyment thereof." This was refused, and the plaintiff excepted. The bill of exceptions is unnecessarily complicated by the insertion of evidence of waiver and other matters, but the only question before us is the one stated, and we have stated all the facts which are necessary for its decision.

The refusal was right. It is settled in this state, in accordance with the law of England, that a wrongful eviction of the tenant by the landlord from a part of the premises suspends the rent under the lease. The main reason which is given for the decisions is that the enjoyment of the whole consideration is the foundation of the debt and the condition of the covenant, and that the obligation to pay cannot be apportioned. Shumway v. Collins, 6 Gray, 227, 232; Leishman v. White, 1 Allen, 489; Royce v. Guggenheim, 106 Mass. 201, 202; Smith v. Raleigh, 3 Camp. 513; Watson v. Waud, 8 Exch. 335, 339. It also is said that the landlord shall not apportion his own wrong, following an expression in some of the older English books...

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