DiMmock v. Daly

• Decision Date: 16 November 1880
• Parties: CAROLINE S. DIMMOCK ET UX., Respondents, v. JOHN J. DALY, Appellant.
• Court: Missouri Court of Appeals

9 Mo.App. 354

CAROLINE S. DIMMOCK ET UX., Respondents,

v.JOHN J. DALY, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 16, 1880.

A tenant, when sued on his covenant to pay rent, cannot set up as a defence or as a counter-claim a tortious act of his landlord, such as trespass upon the demised premises and consequent injury to the tenant's goods, where the wrong does not amount to an eviction, and is not pleaded as a breach of the covenant of quiet enjoyment.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

E. T. FARISH, for the appellant: “If one is sued upon a covenant for rent, he may recoup for damages occasioned by a breach of other covenants in the same lease, though they are implied ones only.”-- Mayor v. Mabie, 3 Kern. 151; Wright v. Litton, 38 Ill. 293; Wagner v. Dette, 2 Mo. App. 267; Green v. Bell, 3 Mo. App. 295. Any obstruction by the landlord to the beneficial enjoyment of the demised premises, or a diminution of the consideration of the contract by the acts of the landlord, amounts to a constructive eviction.-- Lewis v. Payne, 4 Wend. 424; Dyett v. Pendleton, 8 Cow. 727; Wright v. Litton, 38 Ill. 293; Jackson v. Eddy, 12 Mo. 209; Gray v. Gaff, 8 Mo. App. 329.

MARTIN & LACKLAND, for the respondent: There was here no eviction, actual or constructive, and the tenant cannot refuse to pay rent for premises occupied by him.-- Dyett v. Pendleton, 8 Cow. 729; Edwards v. Candy, 14 Hun, 596; Bank v. Newton, 57 How. Pr. 152; Cram v. Dresser, 2 Sandf. 120; Jackson v. Eddy, 12 Mo. 209. The facts set up in the answer neither constitute a defence nor a counter-claim.-- Edgerton v. Page, 20 N. Y. 281; New York v. Parker, 8 Bosw. 300; s. c. 12 Abb. Pr. 30; s. c. 21 How. Pr. 289.

BAKEWELL, J., delivered the opinion of the court.

This is an action upon a written lease, to recover four months' rent due, the rent of a store-room and cellar in St. Louis, of which defendant was in possession under the lease. The answer admits the execution of the lease and defendant's occupation under it, and, as matter of defence, sets up that the store and cellar in question are parts of a building owned by plaintiff, the lessor, the upper stories of which are occupied by tenants of the lessor; that the lessor put in water-pipes between the partition-wall which is the southern boundary of the store demised to defendant, and under the floor and under the ceiling of the store, for the convenience of the tenants on the upper stories; that defendant's store has no connection with these pipes, and that the pipes are so badly exposed and improperly placed and constructed that they burst whenever the weather is cold, and have so burst several times during the time that defendant has occupied the premises, damaging defendant's goods and machinery; that defendant notified plaintiff of the condition of the pipes and the consequent loss to him, but that she refused to change the location of the pipes; that these pipes burst on January 8, 1879, and flooded defendant's store, and loosened the ceiling so as to endanger occupants of the store; that the ceiling remains in a dangerous condition; that the pipes periodically since that date break and leak, and that the premises occupied by defendant under the lease have, by reason of these facts, become untenantable, and that plaintiff refuses to repair. Defendant further sets up that during the months for which rent is claimed, plaintiff caused bricks to be piled in the alley behind the building and over the cellar grating, so as to stop the ventilation of the cellar and render it damp, unwholesome, and untenantable, and a nuisance, and that the employees of defendant could not occupy the rear of the building by reason of the glare from the bricks; that plaintiff was notified of all this, and refused to do anything. Defendant asks damages by reason of these alleged wrongs in the sum of $5,000, which he asks to recover against plaintiff's claim for rent. Plaintiff demurred, on the ground that the answer does not contain either a defence or a counter-claim. The demurrer was sustained. Defendant refused to plead further, and there was judgment for the amount claimed by plaintiff.

If we rightly gather from his brief the view of counsel for appellant, it is that this answer is to be treated as if the implied covenant for quiet enjoyment were pleaded therein. The lessee might, in an action for rent, set up the breach by plaintiff of a covenant in the same lease, where such covenant concerned the subject for which rent was agreed to be paid. But we do not see that this covenant of the lessor is set up in the answer. The pleader seems not to have had any such covenant in his mind, but rather sets up a counterclaim for damages exceeding the amount of rent claimed in the action, and arising from tortious acts of the lessor,...