Darke County.

invoking the power of that court to fix the mode and manner of crossing, and that the answer setting up that proceeding in the probate court was properly stricken from the files.

We find no error upon the record. The judgment of the court of common pleas is affirmed.

Sullivan and Summers, JJ., concur.

PLEADING-LANDLORD AND TENANT-ACTIONS.
[Franklin (2nd) Circuit Court, October 23, 1903.]

Sullivan, Summers and Wilson, JJ.

*CHARLES W. LINKE V. D. B. WALCUTT ET AL.

1. JUDGMENT IN ACTION TO RECOVER REAL ESTATE AND MESNE PROFITS NO BAR TO ACTION FOR RENT.

A judgment in an action commenced to recover the possession of real property upon forfeiture of a leasehold estate therein, together with damages as for mesne rents and profits, cannot be pleaded in bar to an action commenced to recover rent under the lease, and which accrued prior to the forfeiture.

2. DEFENSES BY LESSEE AGAINST CLAIM FOR RENT INSUFFICIENT, WHEN. Defenses interposed by a lessee in an action commenced by lessor, to recover rents under the lease, based upon alleged damages arising from a leakage in a roof, but without alleging an obligation on lessor's part to repair; or, that the roof was under lessor's control, but without alleging specially any damages arising from its defective condition; or, pleading damages for having made certain improvements, which lessee himself was bound to make, but without alleging specially any damages by reason thereof, or a wrongful eviction, are all insufficient as against a demurrer.

3. PENDENCY OF MORTGAGE FORECLOSURE SUIT NOT AN EVICTION.

Pendency of a mortgage foreclosure suit, which terminated subsequently to the. forfeiture by lessee of his leasehold estate, is not an eviction of lessee by paramount title, and will not relieve him from paying the rent due under the lease.

ERROR to court of common pleas of Franklin county.

The action below was one to recover rent, from June 1, 1898, to January 1, 1899, under a written lease for property, the term of which began June 1, 1896, and was to end May 31, 1899, with privilege of renewal for a further term of two years, on lessee's serving written notice within thirty days prior to the expiration of said three years' term. The rental was payable in installments of $150 per month, from 心 the first to the fifth of the month; and the lease provided that if rent remained unpaid for five days after becoming due, that, without de*Affirmed by Supreme Court without report, Linke v. Walcutt, 69 Ohio St.

531.

Linke v. Walcutt.

mand, the lessor might re-enter and have possession, and thereupon the lease should cease, terminate and be utterly void.

The lessee defaulted in the payment of his rent each month from July, 1898, to January, 1899.

In January, 1899, the lessors served on lessee a notice of forfeiture, asserted their right to re-enter, and demanded possession, which was refused. Thereupon the lessors commenced an action against said lessee to recover the possession of said premises and for mesne profits, i. e., rents and profits from and after the date of said forfeiture. This action was tried in October, 1900, resulting in a finding that the lessors were entitled to possession of the premises when the action was brought, under their demand, and allowing them $600 as the value of the issues and mesne profits of said premises from and after January 10, 1893, the date of the forfeiture of the lease, to June 6, 1899, when the premises changed hands, after which the said tenant was retained in possession by the purchaser at a reduced rental.

The trial of that action adjudicated the fact that said lease terminated on January 10, 1899, and with it all rights of the lessee to renewal privilege, etc.

At the end of said action for the recovery of the possession of the premises and for mesne profits, the defendant below, Linke, filed in this case below (which had been commenced subsequent to said action for possession) a supplemental answer, pleading the recovery in the former action, as a bar to this action for rent, under the lease, accrued prior to the forfeiture. To this supplemental pleading the court below sustained a demurrer which, is is claimed, was error and which is the principal question argued by counsel for plaintiff in error.

Defendant also set up, as a defense, damages alleged to have arisen from a leakage in the roof of the building on the premises. The lease did not bind lessor to repair. It was subsequently averred in an amended answer that the roof was under lessor's control, but no allegation pleading specially any damages was made. Defendant also plead the pendency of a mortgage foreclosure in the United States courts as an eviction.

J. D. Sullivan, for plaintiff in error:

If the two actions could have been joined then a judgment in one is a bar to the further prosecution of the other. Bigelow, Estoppel (ed. 1876) 108, 113; Smith v. Whiting, 11 Mass. 445; 4 Term 146.

The actions could be joined. McKinney v. McKinney, 8 Ohio St. 423; Perry v. Richardson, 27 Ohio St. 110; Woodhull v. Rosenthal, 61 N. Y. 382, 397; Taylor v. Heintz, 87 Mo. 660, 665; Perry v. Dickerson, 85

Franklin County.

N. Y. 345, 347; Tillinghast v. Walton, 120 N. Y. 628 [24 N. E. Rep. 1096]; Shumake v. Nelms, 25 Ala. 126, 133; Cummings v. McGehee, 9 Porter (Ala.) 349.

Rent between landlord and tenant is of mesne profits. Sedgwick, Damages Secs. 905, 907, 908, 914; Schuyler v. Smith, 51 N. Y. 309; Ives v. Williams, 50 Mich. 100 [15 N. W. Rep. 33]; Benfey v. Congdon, 40 Mich. 283; Camarillo v. Fenlon, 49 Cal. 205; Herreshoff v. Tripp, 15 R. I. 92, 94, 95 [23 Atl. Rep. 104]; Strong v. Garfield, 10 Vt. 502: Walker v. Hitchcock, 19 Vt. 634; Lippett v. Kelley, 46 Vt. 516; 1 Chitty, Pleading 193, 194, 196; Adkins v. Loucks, 107 Wis. 587 [83 N. W. Rep. 934]; Barth v. Loeffelholtz, 108 Wis. 562 [84 N. W. Rep. 846]; Young v. Farwell, 165 N. Y. 341 [59 N. E. Rep. 123]; Phelan v. Quinn, 130 Cal. 374 [62 Pac. Rep. 623]; Quirk v. Rooney, 130 Cal. 505 [62 Pac. Rep. 825]; Stone v. Stamping Co. 155 Mass. 267 [29 N. E. Rep. 623].

Where two actions are pending in the same court, between the same parties, involving the same contract, judgment in one is a bar against the other action, and may be so pleaded. Matthews v. Davis, 39 Ohio St. 54, 56; Barnard v. Devine, 68 N. Y. Supp. 859; Grant v. Ramsey, 7 Ohio St. 158, 162, 163; Erwin v. Lynn, 16 Ohio St. 539, 547; Lancaster Mfg. Co. v. Colgate, 12 Ohio St. 344, 357; Hites v. Irvine, 13 Ohio St. 283, 287; Stein v. Steamboat, 17 Ohio St. 471, 475 [93 Am. Dec. 631]; Ewing v. McNairy, 20 Ohio St. 315; Covington & C. Bridge Co. v. Sargent, 27 Ohio St. 233; Roby v. Rainsberger, 27 Ohio St. 674; Swenson v. Cresop, 28 Ohio St. 668; Fanning v. Insurance Co. 37 Ohio St. 344; Whitney v. Clarendon, 18 Vt. 252; Reynolds v. Railway Co. 29 Ohio St. 602, 604; James v. Allen Co. 44 Ohio St. 226 [6 N. E. Rep. 246; 58 Am. Rep. 821]; Hixon v. Ogg, 53 Ohio St. 361, 367 [42 N. E. Rep. 32]; Baltimore & O. Ry. Co. v. Smith, 54 Ohio St. 562, 596 [44 N. E. Rep. 240].

Damage by leakage from that part of the premises retained by the landlord was a proper element of damage to aver and prove. Toole v. Beckett, 67 Me. 544 [24 Am. Rep. 54]; Jones v. Freidenburg, 66 Ga. 505 [42 Am. Rep. 86]; Glickauf v. Maurer, 75 Ill. 289 [20 Am. Rep. 238]; Milford v. Holbrook, 91 Mass. (9 Allen) 17; Shipley v. Fifty Associates, 106 Mass. 194; Salisbury v. Herchenrode”. 106 Mass. 458; Center v. Davis, 39 Ga. 210; Wood, Landl. & Ten. 1117, and notes; Dyett v. Pendleton, 4 Cow. (N. Y.) 581; Ogilvie v. Hu'l. 5 Hill (N. Y.) 52; Bennett v. Bittle, 4 Rawle 339; Banders v. Fletcher, 11 Serg. & R. 419; DeWitt v. Pierson, 112 Mass. 8; Wetzell v. Richereek, 53 Ohio St. 62, 67 [40 N. E. Rep. 1004]; McNairy v. Hicks, 59 Tenn. 378; Jackson v. Eddy, 12 Mo. 209; Crommelin v. Thiess & Co. 31 Ala. 412; Peck v. Hiler, 24 Barb. (N. Y.) 178; Rogers v. Ostrom, 35 Barb.

Linke v. Walcutt.

(N. Y.) 523; Secs. 5071, 5074, 5075, 5076 Rev. Stat.; Holbrook v. Young, 108 Mass. 83; Tiley v. Moyers, 43 Pa. St. 404; Blair v. Claxton, 18 N. Y. 529; Eldred v. Leahy, 31 Wis. 546.

Where the wrong consists in interrupting a regular and established business, the usual and ordinary profits incident to the business are proper elements of damage. Goebel v. Hough, 26 Minn. 252 [2 N. W. Rep. 847]; Shaw v. Hoffman, 25 Mich. 162; Hinckley v. Beckwith, 13 Wis. 31; De La Zerda v. Korn, 25 Tex. 188; Ganson v. Tifft, 71 N. Y. 49, 56; Hitchcock v. Anthony, 83 Fed. Rep. 779 [28 C. C. A. 80; 54 U. S. App. 439]; Rhodes v. Baird, 16 Ohio St. 573; Masterton v. Brooklyn, 7 Hill (N. Y.) 61; Gauge Co. v. Valve Co. 184 Pa. St. 36 [39 Atl. Rep. 223]; Conway v. Fitzgerald, 70 Vt. 103 [39 Atl. Rep. 634]; Wreford v. Kenrick, 107 Mich. 389 [65 N. W. Rep. 234]; Central Trust Co. v. Clark, 92 Fed. Rep. 293 [34 C. C. A. 354]; Kramer v. Messner, 101 Iowa 88 [69 N. W. Rep. 1142]; Collins v. Lavelle, 19 R. I. 45 [31 Atl. Rep. 434]; Poposkey v. Munkwitz, 68 Wis. 322 [32 N. W. Rep. 35; 60 Am. Rep. 858]; Colburn v. Morrill, 117 Mass. 272 [19 Am. Rep. 415]; Eten v. Luyster, 60 N. Y. 252; Robrecht v. Marling, 29 W. Va. 765 [2 S. E. Rep. 827]; Fillebrown v. Hoar, 124 Mass. 580.

Rathmell & Johnson, for defendants in error:

An action under the statutes for the recovery of the possession of real property, upon a forfeiture with damages for withholding the same, the rents and profits, and an action for the recovery of rent under the lease, which accrued previous to the forfeiture, are not joinable. as the joinder of causes of action for rent under a lease. and for recovery of possession as upon forfeiture of the lease, is a misjoinder; therefore the recovery on one cannot be a bar to the claims set forth in the other. Countee v. Armstrong, 9 Re. 62 (10 Bull. 339); Scott v. Wasson, 2 Re. 460 (3 W. L. M. 148); Kinkead, Code Pl. (2 ed.) Sec. 30, p. 78; Bates, Pleading 139; Owens v. Hickman, 13 Re. 289 [2 Disn. 471; 3 Gaz. 349]; Campbell v. McElevey, 13 Re. 351 [2 Disn. 574; 4 Gaz. 321]; New An. Code p. 56; note under Sec. 5019 [5058] Rev. Stat.; McAdam, Landl. & Ten. (3 ed.) 1441; Taylor, Landl. & Ten. Sec. 499; Stuyvesant v. Davis, 9 Paige 427, 428, 430.

The term "rents and profits," used in Sec. 5019 [5058] Rev. Stat., permitting an action for the recovery of real property with damages for withholding the same, rents and profits to be joined, refers merely to the time possession is wrongfully withheld; the action being the code substitute for trespass for mesne profits. Countee v. Armstrong, 9 Re. 62 (10 Bull. 339); McKinney v. McKinney, 8 Ohio St. 423, 429; Livingston v. Tanner, 12 Barb. 481, 486; Larned v. Hud

Franklin County.

son, 57 N. Y. 151, 153; Woodhull v. Rosenthal, 61 N. Y. 382, 394; Lord v. Deering, 24 Minn. 110, 113; Dobbins v. Baker, 80 Ind. 52, 55; Harrall v. Gray, 12 Neb. 543, 544 [11 N. W. Rep. 851].

The landlord after a reentry for a forfeiture may recover rent, which accrued previous to such forfeiture, but for rent which became due subsequent to that time he cannot recover as a landlord; his only remedy is for mesne profits. 12 Enc. Pl. & Pr. 861; Scott v. Wasson, 2 Re. 460 (3 W. L. M. 148); 18 Am. & Eng. Enc. Law (2 ed.) 301.

McKinney v. McKinney, 8 Ohio St. 423, cited by plaintiff in error, was an action for the recovery of real estate and damages for wrongfully withholding possession from plaintiff for nineteen years, and did not hold that a recovery of possession and damages for wrongful holding could be united with a claim for rent under a lease.

The lease failing to bind lessors to repair, there was no implied obligation on the part of lessors to keep the demised premises in repair, and a defense, or counterclaim, interposed in an action for rent, based on an alleged damage arising from a leakage in the roof, is bad on demurrer. Annotated Code, 524; Edgerton v. Page, 20 N. Y. 281; Boreel v. Lawton, 90 N. Y. 293 [43 Am. Rep. 170]; Vann v. Rouse, 94 N. Y. 401; Shindlebeck v. Moon, 32 Ohio St. 264 [30 Am. Rep. 584]; Kinkead, Code Pl. (1 ed.) Sec. 82; Phillips, Pleading Sec. 252, p. 230; 18 Am. & Eng. Enc. Law (2 ed.) 218, 322.

The attempt to adopt the first defense and cross-petition is ineffectual to constitute the allegations of the first defense an integral part of this defense. Shindlebeck v. Moon, 32 Ohio St. 264 [30 Am. Rep. 584]; Denison University v. Manning, 65 Ohio St. 138 [61 N. E. Rep. 706].

Damages. Annotated Code, p. 76; Bliss, Code Pl. 297b; McAdam, Landl. & Ten. 49, 408, 1340; Sutherland, Damages 864; Taylor, Landl. & Ten. 317; Pendleton v. Myers, 1 Re. 282 (7 W. L. J. 39); Backus v. McCoy, 3 Ohio 211 [17 Am. Dec. 585]; McAlpin v. Woodruff, 11 Ohio St. 120, 129; Wetzell v. Richcreek, 53 Ohio St. 62, 73 [40 N. E. Rep. 1004]; Sedgwick, Damages 961; Mack v. Patchin, 29 How. Pr. 20; Rhodes v. Baird, 16 Ohio St. 573.

Pleading by reference, bad. Denison University v. Manning, 65 Ohio St. 138 [61 N. E. Rep. 706]; Bliss, Code Pl. 113; Southern v. Wilcox, 4 Re. 251 (1 Clev. L. Rep. 172).

Pendency of the suit in foreclosure in the United States court was not an eviction of the lessee and did not relieve him of the obligation to pay rent. Armleder v. Lieberman, 33 Ohio St. 77 [31 Am. Rep. 530]; Zieverink v. Kemper, 50 Ohio St. 208, 220 134 N. E. Rep. 250]; Pickett v. Ferguson, 45 Ark. 177 155 Am. Rep. 545]; Bates, Pleading 512; Peck v. Ice Co. 18 Hun (N Y.) 183; Whalin v. White 25 N. Y. 462;