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for possession of the residue and its refusal by the plaintiff, a waiver of any of their rights under the contract, or of any defence they might have to the plaintiff's demand for rent, arising from his breach of the contract.

The jury have found that when the defendants demanded possession of the residue of the demised premises, the plaintiff' gave them no (lefinite answer, but put them off from time to time, without any positive refusal, leaving them to infer that he would comply with their request. And if the jury had not so found, the plaintiff was bound to perform his contract, and is answerable for all the legal consequences of its breach, unless its performance was actually waived by the defendants. Their continuance in the possession of the three lower stories, after the plaintiff's refusal to deliver possession of the resiclue of the building, did not in itself amount to a waiver of their right to insist upon a strict performance of the contract. They had the undoubted right to retain possession of the three lower stories, and to hold the plaintiff responsible for his failure to deliver possession of the cellar and of the fourth and fifth stories, as required by his contract. The only question, then, under the facts of this case, is : Was the plaintiff entitled to recover any portion of the stipulated rent under the count for use and occupation? He leased his warehouse to the defendants for an entire considleration, and his contract must therefore be regarded as an entirety. If the consideration is single, the contract is entire, whatever the number or variety of the items embraced in its subject. The principle is too well settled to admit of doubt, and too familiar to require the citation of authorities in its support, that for the part performance of an entire contract there can be no recovery, unless complete performance has been prevented or waived by the party entitled to demand it.

If the plaintiff had performed his contract he might have recovered on the count for use and occupation, under the Statute of 11 Geo. II. c. 19, which is in force in this State (Rob. Dig. 237); but having failed to perform it, he was not entitled to recover, either upon a count on the contract of lease, or upon the statutory count for use and occupation.

The learned President Judge of the District Court was therefore clearly right in instructing the jury that, if they found the facts to be as stated in the charge, the plaintiff was not entitled to recover in this action for use and occupation for the time the defendants occupied a portion of the building, and their verdict must be for the defendants.

Judgment affirmed.

ROYCE v. GUGGENHEIM.
SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1870.

[Reported 106 Vass. 201.] CONTRACT for the rent from March 7 to April 7, 1869, of real estate leased by the plaintiff to the defendant for three years from September 7, 1868, by a lease, dated on that day, which described the demised premises as " the small wooden house and store, now occupied by said Guggenheim and numbered 117 on Eliot Street in Boston,” and contained no espress covenant on the part of the landlord.

At the trial in the Superior Court, before Rockwell, J., the defendant relied on his eviction from the premises, in defence against the action ; and the plaintiff' requested a ruling "that, in order to constitute an eviction, whether of a part, or of the whole of said premises, it must be as if closed up actual and entire, there being evidence of some use of the alleged evicted rooms.” The judge declined so to rule ; but instructed the jury " that if the plaintiff, before the month for which rent was sought to be recovered, had evicted the defendant from two or more of the rooms, he cannot recover for that month's rent; that if the rooms, at the time of the lease and for some time after, had light and air enough to make them fit for use as kitchen and sleeping-chamber, and were thus used, and if, after the erection by the plaintiff of the new building in the back yard, against the house, closing the windows of those rooms, those rooms were made entirely unfit for those purposes, and by reason of that unfitness were abandoned, and tliis erection was not by the license or consent of the defendant, this was an eviction so as to effect a suspension of the rent, and it was not essential to such eviction that the doors of the rooms should have been closed up by the plaintitf so as to prevent the defendant's entry into the same.” The jury returned a verdict for the defendant, and the plaintiff alleged exceptions. The bill of exceptions contained no statement of the evidence on the question of eviction, other than appears in the above statement of the instructions given or requested.

H. II. Mother, for the plaintiff.
J. L. Eldridge, for the defendant.

GRAY, J. The eviction of a tenant from the demised premises, either by the landlord or by title paramount, is a bar to any demand for rent: because it deprives hiin of the whole consideration for which rent was to be paid. Gilbert on Rents, 145; Morse v. Gollard, 13 Met. 177. And his eviction by the landlord from part of the premises suspends the entire rent, because the landlord - shall not so apportion his own wrong as to enforce the lessee to pay anything for the residue.” Hale, C. Jos in Hodgkins v. Robson, 1 Ventr. 276, 277; Page v. Parr, Style, 432; Shumway v. Collins, 6 Gray, 227; Leishman v. White, 1 Allen, 489.

To constitute an eviction which will operate as a suspension of rent, it is not necessary that there should be an actual physical expulsion of the tenant from any part of the premises. Any act of a permanent character, done by the landlord, or by his procurement, with the intention and effect of depriving the tenant of the enjoyment of the premises demised, or of a part thereof, to which he yields and abandons possession, may be treated as an eviction. Smith v. Raleigh, 3 Camp. 513 ; Upton v. Townend, 17 C. B. 30.

But no lawful act, done by the landlord upon an adjoining estate owned by him, for the purpose of improving that estate, and not for the purpose of depriving the tenant of the enjoyment of any part of the demised premises, can be deemed an eviction. The mere fact that by an act or default of the landlord, not unlawful in itself, nor accompanied with any intention to affect the enjoyment of the premises demised, they have been rendered uninhabitable, is not sufficient. It is now well settled, both here and in England, that in a lease of a building for a dwelling-house or store, no covenant is implied that it should be fit for occupation. Hart v. Windsor, 12 M. & W. 68; Dutton v. Gerrish, 9 Cush. 89; Foster v. Peyser, Ib. 242; Welles v. Castles, 3 Gray, 323. And the English authorities, ancient and modern, are conclusive, that even where the landlord is bound by custom or express covenant to repair, and by his failure to do so the premises become uninhabitable, or unfit for the purposes for which they were leased, the tenant has no right to quit the premises, or to refuse to pay rent according to his covenant, but his only remedy is by action for damages. 14 Hen. IV. 27, pl. 35 ; 27 Hen. VI. 10, pl. 6; Bro. Ab. Dette, 18, 72. Parke, B., in 12 M. & W. 84; Surplice v. Farnsworth, 7 Man. & Gr. 576; Kramer v. Cook, 7 Gray, 550; Leavitt v. Fletcher, 10 Allen, 119, 121.

In the recent English case of Upton v. Townend, 17 C. B. 30, after elaborate arguments upon the question, all the judges substantially agreed upon the definition of eviction. Chief Justice Jervis said: “I think it may now be taken to mean this : not a mere trespass and nothing more, but something of a grave and permanent character, done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises.” Mr. Justice Williams said : “ There clearly are some acts of interference by the landlord with the tenant's enjoyment of the premises, which do not amount to an eviction, but which may be either mere acts of trespass, or eviction, according to the intention with which they are done. If these acts amount to a clear indication of intention on the landlord's part that the tenant shall no longer continue to hold the premises, they would constitute an eviction.” Mr. Justice Crowder said: “ Eviction, properly so called, is a wrongful act of the landlord, which operates the expulsion or amotion of the tenant from the land. The question here is, whether there has been an eviction as it is popularly called, a putting out or depriving the

tenants of the subject-matter of the demise.” And Mr. Justice Willes said : “ If the plaintiff is liable for what has been done, does it amount to an eviction? I am of opinion that it does, as being an act, of a permanent character, done by the landlord in order to deprive, and which had the effect of depriving, the tenant of the use of the thing demised, or of a part of it.” The act of the landlord which was there held, upon a statement authorizing the court to draw such inferences as a jury might, to amount to an eviction, was the rebuilding of the tenements upon their destruction by fire (which the lessor bad covenanted to do) in such a manner as permanently to alter the character of the demised premises.

In a still later case, where the tenant, being desirous to underlet, put in a man to show the rooms, and posted in the window a bill stating that they were to be let; and the landlord, being annoyed by this proceeding and by the conduct of the man, turned him out of the house and took down the bill, but left the keys in the rooms; and the tenant did not return, and contended that he had been evicted, and therefore was not liable for the rent, — it was ruled at nisi prius, and aflirmed by the Court of Queen's Bench upon a motion for a new trial, that it was a question for the jury, whether the act of the landlord was done with the intention of evicting the tenant, or simply for the purpose of expelling the man whom be had put in; and, the verdict being for the landlord, the court refused to set it aside. Henderson v. Mears, 1 Fost. & Finl. 636; S. C. 28 L. J. N. S. Q. B. 305 ; 5 Jur. N. S. 709; 7 Weekly Rep. 554.

It was argued for the defendant, in the present case, that even the erection of a building by the landlord upon adjoining land would be an eviction, if it stopped the tenant's windows; and his counsel cited Dyett v. Pendleton, 8 Cowen, 727, in which the New York Court of Errors held that the creation of a nuisance by the landlord in another tenement under the same roof, by bringing lewd women into it, who made a great noise and disturbance there at night, in consequence of which the lessee and his family left the demised premises, was evidence to go to the jury under a plea of eviction. Upon that case, it is to be observed, 1st. The act of the landlord was an unlawful act, and not a lawful use of his other tenement; 2d. The decision of the Court of Errors was not that the facts in law amounted to an eviction, but only that they should have been submitted to the jury; 3d. That decision reversed the unanimous judgment of the Supreme Court, as reported in 4 Cowen, 581; 4th. It has since been considered, even in New York, an extreme case. Sarage, C. J., in Etheridge v. Osborn, 12 Wend. 529, 532. Nelson, C. J., in Ogilvie v. IIull, 5 Hill, 52, 54. Bronson, C. J., in Gilhooley v. Washington, Comst. 217, 219. In Palmer v. Wetmore, 2 Sandf. 316, the Superior Court of the city of New York, consisting of Chief Justice Oakley and Justices Vanderpool and Sandford, adjudged that the mere fact of the erection of a building by a landlord on his adjoining land, so as to obstruct and darken the tenant's windows, was not an eviction. To the same effect is Myers v. Gemmel, 10 Barb. 537. See also the

learned opinion of Judge Daly in Edgerton v. Page, 1 Hilton, 320; s. C. 20 N. Y. 281. We cannot, therefore, rest our judgment in the case at har upon that of Dyett v. Pendleton. Nor is it necessary so to do.

The lease from the plaintiff to the defendant was of a house and shop, and contained no express covenant on the part of the landlord. By the law of this Commonwealth, no easement of light and air exists over adjoining lands unless by express grant or covenant. Collier v. Pierce, 7 Gray, 18; Rogers v. Sarin, 10 Gray, 376; Brooks v. Reynolds, 106 Mass. 31. I the plaintiff had conveyed away the adjoining estate, the grantee might have built thereon so as to stop up the defendant's windows, without affording the latter any right of action for damages, or of suspension or abatement of his rent. And so if the landlord himself erected a builling upon any part of the adjoining estate, for the purpose of improving that estate, it was a lawful act, which violated no obligation which he was under to the defendant, and did not constitute an eviction. If, on the other hand, such an act was done by the landlord for the purpose and with the effect of making the defendant's tenement or any room therein uninhabitable, the defendant might perhaps at his election treat it as an eviction, and give up the premises and refuse to pay rent. At any rate he might do so, if the building was erected upon part of the curtilage included in his lease, closing the windows of his dwelling-house so as to make a part of it uninhabitable ; because that would be the erection of a permanent structure on part of the demised premises, materially changing the character and beneficial enjoyment thereof; and in such case the landlord would be responsible for the effect of his wrongful act, without further proof of unlawful intent. Upton v. Tounend, 17 C. B. 30, above cited.

Applying these principles to the bill of exceptions, we are of opinion that the plaintiff fails to show that he was aggrieved by the instructions given at the trial. Under those instructions, the jury must have found that by the plaintiff's erection of a new building in the back yard against the house, without the tenant's consent, two of the rooms therein, previously used as a kitchen and bedroom, were made untirely unfit for those purposes, and by reason of that unfitness were abandoned. The bill of exceptions does not show that the plaintiff contended that the rooms could have been used for any other purpose after the erection of the new building, or that the back yard was not part of the demised premises, or made any question, or asked for any ruling, as to the intention with which he erected that building.

E.cceptions overruled.1

1 See Sherman v. Williams, 113 Mass. 481.

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