By section 149 of the Code, the defendant is permitted to include in his answer new matter, constituting a counter-claim. Section 150 defines the class of demands which are embraced in section 149, as counterclaims. A counter-claim must be, 1st, a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action; or 2d, in an action arising on contract, any other cause of action arising also on contract and existing at the commencement of the action. The demand of the defendant, set out in the answer, does not arise out of the contract set forth in the complaint. That contract is for the payment of rent, upon a lease of the demised premises. The defendant's demands arise from the wrongful acts of the plaintiff in permitting water to leak and run into the premises, and in causing or permitting it to be thrown upon the premises and property of the defendant. These acts are entirely independent of the contract of leasing upon which the action is brought. The demands are not connected with the subject of the action; that is, the rent agreed to be paid for the use of the premises. The defendant's demands are for a series of injuries to his property deposited upon the premises, and for impairing the value of the possession. It would be a very liberal construction to hold that in an action for rent, injuries from trespasses committed by the lessor upon the demised premises might be interposed as a counter-claim. The acts of the plaintiff in this case are of a similar nature. They are either acts of trespass or negligence, from which the injuries to the defendant accrued. Such a construction could only be supported by the idea, that the subject of the action was the value of the use of the premises. But when there is an agreement as to the amount of rent, that value is immaterial. Unless the acts of the defendant amount to a breach of the contract of letting, they are not connected with the subject of the action. In the case of the Mayor of New York v. Mabie, 3 Kern. 151, it was held by this court that a covenant for quiet enjoyment by the lessor was implied in a lease under seal, for a term not exceeding three years, since as well as before the Revised Statutes; that this covenant was broken by an interference with possession by the lessor under a claim of right; consequently, that damages sustained from such acts might be recovered in an action for rent. It was remarked by Denio, J., in giving the opinion in that case, that it is not, however, every mere trespass by the lessor upon the demised premises which will amount to a breach of this covenant; although the covenantor cannot avail himself of the subterfuge, that his entry was unlawful, and he therefore a trespasser, to avoid the consequences of his own wrong, still, to support the action of covenant, the entry must be made under an assumption of title. For this, the learned judge cites Platt on Covenants, 319, 320. There is nothing in the answer in this case tending to show, that any of the acts of the defendant were done under any claim of right whatever. They did not therefore amount to a breach of the contract created by the lease, and the injuries sustained by the defendant do not therefore con

stitute a counter-claim connected with the subject of the action. The

CONTRACT. The first count was for use and occupation of a tenement hired of the plaintiff by the defendants. The second count was for one quarter's rent of the same tenement. Another count afterwards filed

set forth a lease by the plaintiff to the defendants of a hotel in Medford, near Spot Pond, with the lands adjoining, and an island in the pond, for five years, at the yearly rent of two hundred and fifty dollars, payable quarterly. The answer, among other defences, set forth an eviction of the defendants by the lessor from a portion of the premises.

At the trial in the Superior Court, the defendants offered evidence to prove that the plaintiff had evicted the defendants from a portion of the premises; but Vose, J., ruled that such eviction, if proved, would only bar the plaintiff's claim pro tanto, and that he might still recover a proportionate share of the rent, according to the ratable value of the portion of the premises from which the defendants were not evicted; and a verdict was accordingly returned for the plaintiff, and the defendants alleged exceptions.

C. M. Ellis, for the defendants.

A. V. Lynde, for the plaintiff.

BIGELOW, C. J. This action cannot be maintained if the defendant proves that he has been evicted from a part of the demised premises by the plaintiff. In such case, no recovery can be had on the covenant to pay rent, because the defendant has been deprived of the beneficial enjoyment of a portion of the estate by the tortious act of the lessor, and the covenant, being entire, cannot be severed or apportioned so as to allow the plaintiff to recover a part of the rent reserved by the lease. Shumway v. Collins, 6 Gray, 232.

Nor can an action for use and occupation of the premises be maintained against the defendant. The lease is not terminated by the unlawful eviction of the lessee. He still continues to occupy that part of the estate from which he has not been evicted, under and by virtue of the demise under seal. No implied promise arises to pay for such occupation and enjoyment. The case therefore stands thus: to the claim on the covenant, the answer is the eviction; to the demand for use and occupation, the answer is that the defendant holds under his lease; so that, in neither aspect of the case, can the plaintiff maintain his action. Fuller v. Ruby, 10 Gray, 285. Verdict set aside.

1 See Borcel v. Lawton, 90 N. Y. 293. But see Alger v. Kennedy, 49 Vt. 109.

VOL. II. 49

BEFORE THOMPSON, C. J., AGNEW, SHARSWOOD, and WILLIAMS, JJ. READ, J., absent.

Error to the District Court of Allegheny county: No. 56, to October and November Term 1868.

This was an action of assumpsit, commenced March 26th, 1866, by W. T. McClurg against Mary C. Price and William H. Sims, trading as Price & Sims.

The first count of the declaration averred that the plaintiff, on the 15th day of April 1866, leased to the defendants a warehouse for seven and a half months, at the rate of $1500 per annum, payable quarterly, the first quarter to be computed from April 1st.

The second count averred, that on the 20th of March the defendants were indebted to the plaintiff in the sum of $900, for the use and occupation of a warehouse. The declaration contained also the common counts.

On the trial, before Hampton, P. J., the plaintiff gave evidence of the occupancy by the defendants of his warehouse and rested. The defendants then called W. C. Robertson, who testified: That a lease was agreed upon between the plaintiff and defendants for the warehouse in question at the annual rent of $1500 per annum for the whole building, payable quarterly; the defendants were to get possession of all but the fourth and fifth stories on the 12th of May 1866, and of the fourth and fifth stories whenever they should want them. There were some old iron, &c., on the premises belonging to the plaintiff, which were to remain in the fourth and fifth stories till the defendants needed those rooms." The defendants did not get possession of the cellar; it was "lumbered up" with old iron, &c., belonging to the plaintiff. The plaintiff sold the good-will as part of the consideration. Defendants had the privilege of renting for another year on the same terms. John Brisbin testified: The plaintiff occupied part of the second story, with ironware; the fourth and fifth stories were occupied entirely by him. The defendants frequently between May and August told the plaintiff that they wanted the fourth and fifth stories, and would not pay rent unless they got them; plaintiff passed off these requests in a careless way, did not say much, and did not give possession of those stories; he was there generally every day from morning till evening; he sold some of his goods from the store during the time. The defendants abandoned the premises about the last of November, 1866, for want of room.

The plaintiff requested the court to charge the jury:

"1. That merely leaving wares and rubbish in portions of the leased building would not be an eviction in law of the lessees, but they would have the right to remove said goods at the expense of the landlord, treating them as they might have done the property of third parties.

"2. That if the jury find from the evidence that the defendants continued in the enjoyment of the larger and more valuable portions of the building, after their alleged demand for possession of the fourth and fifth stories, such conduct is a waiver of any right to treat such possession by the plaintiff as an eviction; and defendants will be liable for a proper rent for the premises actually enjoyed by them."

The points were answered in the charge, and substantially denied. The defendants asked the court to charge:

"1. That the facts in evidence showed an eviction in law before any rent had fallen due.

2. That having made a special contract for the rent of the entire building for a year, plaintiff cannot set that contract aside and bring this action for use and occupation, and recover rent for that part of the building occupied by defendants."

The court affirmed both these points.

The court, after stating the evidence to the jury, charged:

"These facts, they contend, if proved to the satisfaction of the jury, will constitute a full and valid defence to the plaintiff's action, for the following reasons: 1. Because they constitute an eviction in law, before any rent had fallen due. But if this position be not sustained, then, 2. That the plaintiff refused, after request, to deliver them the entire possession of the demised premises, and as the plaintiff cannot take advantage of his own wrong in refusing to comply with his contract, by apportioning the rent, the law will not do so for him. 3. That having made a special contract for the rent of the entire building for a year, he cannot set that contract aside and bring this action for use and occupation, and recover rent for that part of the building occupied by the defendants.

["If you find from the evidence that the contract, as testified to by Mr. Robertson, was entered into by the parties, and that the defendants entered into possession under the same; and that the plaintiff was repeatedly requested by them to give them the possession of the fourth and fifth stories, before any rent had fallen due; that he gave them no definite answer, but put them off from time to time, without any positive refusal, leaving them to infer that he would do so; and that they were finally compelled, for want of room to carry on their business, to rent another house, and moved out in the latter part of November; then we instruct you, that the plaintiff is not entitled to recover in this action for use and occupation for the time the defendants occupied a portion of the building, and your verdict ought to be for the defendants.]

"But if there was no such special contract, but the defendants entered merely with the consent of the plaintiff, then they are liable

to pay a fair rent for the use of such portions of the building as they occupied."

The verdict was for the defendants. The plaintiff removed the case to the Supreme Court, and assigned for error the disaffirmance of his points and the portion of the charge in brackets.

G. Shiras, Jr., for plaintiff in error.

D. Reed, for defendants in error.

The opinion of the court was delivered, January 4th, 1869, by WILLIAMS, J. The plaintiff's retention of a part of the demised premises, and his refusal to deliver possession thereof to the defendants, on demand, in accordance with the terms of his verbal lease, did not constitute an eviction in law. It is doubtless true that there may be an eviction without an actual physical expulsion; but there can be no eviction, actual or constructive, without an antecedent possession. If this case turned on the question of eviction, the plaintiff might be entitled to recover rent for the portion of the premises actually enjoyed by the defendants. But it does not turn on this point. The evidence shows, and the jury have found, that the plaintiff leased his warehouse to the defendants, at an annual rent of $1500, payable quarterly; that at the making of the contract, he delivered to them possession of the three lower stories, and agreed to give them possession of the cellar and of the fourth and fifth stories, on demand; that he refused to deliver possession thereof, although repeatedly requested; and that the defendants were finally compelled, for want of room, to abandon the premises

and to rent another house for the transaction of their business.

Notwithstanding the plaintiff's deliberate and persistent refusal to per form his contract, he claims the right to recover compensation for the use and occupation of the portion of the demised premises actually en joyed by the defendants, on the ground that they had the right to treat his goods as they would those of a stranger, and to remove them at his expense. But if the right be conceded, it does not follow that the defendants were bound to exercise it to the exclusion of all other reme

tract.

dies which the law gave them for the redress of the plaintiff's breach of his contract, or that their failure to exercise it will prevent them from setting up any defence to his claim for rent which they might otherwise make. But the defendants had no right to remove the plaintiff's goods. The law gave them no such remedy for his refusal to perform his conThe evidence not only shows that his goods were in the portion of the demised premises which he withheld from the defendants, but that he was in the daily occupancy thereof for the purpose of selling his goods, and that he made sales from time to time, although part of the consideration of the stipulated rent was the good-will of his business. If the defendants had ejected the plaintiff and turned his goods into the

street, or removed them elsewhere, they would have been guilty trespass for which his breach of the contract would have afforded

of a

them

larger and more valuable portion of the building," after their demand no justification. Nor was their continuance in the enjoyment of the