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in case he has taken possession; and on the other hand, this preliminary contract would not sustain an action by the lessor for rent. Whether the instrument is a lease or a preliminary contract is merely a question of intention to be gathered from the terms of the instrument and the construction which the parties have given it. That the lessee has taken possession under it is indicative that it is a present demise; that he has paid and the lessor accepted rent is even stronger evidence in the same direction. That possession has not been taken under it might afford some, though but slight, indication of a contrary intention; but in this case the question must be decided principally on the terms of the writing. Where the terms are uncertain, as "subject to the usual covenants," as to which there might be a difference of opinion, this tends to show that the parties intended that a more formal instrument should be drawn and that the present writing is merely an agreement for a future lease. If the instrument shows that the party intending to make the lease has no power yet to make it, the same inference would follow. But if it appears that the writing was intended to give possession it may operate as a lease though its form is "agrees to let," or the possession is not to be taken till a future time, or the house leased is yet to be built. Agreement for the execution of a future instrument is most indicative that the present instrument is not a lease. "Demise, lease, and to farm let" or other words of present demise, are most indicative that a lease is intended.

§ 19. Agreement for lease: Usual covenant. An

agreement to make a lease entitles both parties to have the lease made accordingly and accepted. If the preliminary agreement does not specify what covenants the lease shall contain, the parties are entitled to have a lease with the usual covenants, and what are the usual covenants depends on the practice in the particular community; but if the parties have designated in the preliminary agreement what covenants shall be included, or specified what they consider the usual covenants, no others can be demanded. Among the most common covenants may be mentioned promises that the lessee shall pay rent, keep and return the premises in repair; and that the lessor shall have a right of entry to inspect the condition of the premises, shall pay the taxes, and secure quiet enjoyment to the lessee. Covenants held not to be within the usual covenants are promises by the lessee to rebuild in case of accidental destruction, not to assign nor sublease, not to conduct a particular business on the premises, to insure, that rent shall cease in case of destruction, that the lessor shall have a right of entry if the rent is not paid or other covenants are broken by the lessee, etc.

§ 20. Same: Remedies for breach of. Refusal to take or give the lease as agreed entitles the other party to sue for and recover damages he may suffer from the breach; but before bringing such an action the party intending it should make a direct demand for the lease, or tender such a lease as he is entitled to have accepted. Demand of a lease to which the party is not entitled, tender of a lease such as the other party is not bound to accept, or

either before all conditions have been performed which the agreement imposed on the party contemplating the suit, will be of no avail. If the lessee refuses to accept the lease, the remedy of the owner at law is an action for damages, though in equity he may compel the lessee to accept the lease; and if the lessor refuses to make the agreed lease the lessee has similar remedies. If the lessor has not the whole premises to grant, the lessee may have specific performance to the extent that the lessor has title to give it, and may have a decree for abatement of the rent in proportion and for damages for the loss of the residue of the property. Even where specific performance as to the whole is decreed, the lessee may have a decree also for such damages as he has suffered from the delay in obtaining it by a decree. The damages recoverable for breach of the agreement by either party are the value of the agreement to the other; to the lessor, the loss on the rent if the premises can be leased to anyone else, and, if not, the whole rent less what the owner was able to realize from the use of them himself; to the lessee, the difference between the agreed rent and the rental value of the premises, plus such sums as he has expended in improvements, repairs, and in preparing to take possession, and, in some cases, prospective profits from the occupation where these can be proven with sufficient certainty. See the article on Damages in Volume XI of this work. If he paid a fee, bonus, or commission to get the lease, he is entitled to recover that.

§ 21. Implied covenants:

Condition of premises,

There is no implied covenant that premises leased are fit for the purpose for which they are hired, whether for cultivation, habitation, manufacture, or trade. There is no implied covenant that they are tenantable, or even safe. There is no implied promise that the lessor will put or keep them in repair. In England and Massachusetts it has been held that the implied warranty of fitness in the sale of chattels for a special purpose extends to the lease of furniture, so that in a lease of furnished apartments or a cottage for a short term there is an implied covenant of tenantableness, which justifies the tenant in abandoning and refusing to pay the rent if the place is so infested with vermin as to be uninhabitable, and so of similar defects. But in a number of the other states the soundness of this distinction has been doubted or denied.

In an action for rent of a furnished house at a seaside resort for five months for a rent of $325 payable in advance, the defense was that ten days after taking possession the defendant abandoned the place because the cellar was filled with water which came up through a hole in the cement floor of the cellar, so that the house was too damp for habitation, and that he had notified the plaintiff in writing at the time of quitting. The court reviewed the English decisions, and held that the facts alleged constituted no defense (6). But where apartments were leased for five years "to be occupied for lodge purposes, and in no case to be used for any business deemed extra hazardous on account of fire," and in

(6) Murray v. Albertson, 50 N. J. L. 167.

an action for the rent the defendants set up that they had abandoned because the walls and floors were not sufficiently deadened to render the place suitable for lodge purposes, and that the lease had been taken in consequence of a previous promise by the lessor to make them fit (which the trial judge held to be superseded because not put into the written lease), and that in an effort to make the place suitable the plaintiff had taken up the floor and neglected to replace it, the supreme court held that the defense was good, saying: "As the use was designated, the floors of the room had to be deadened, as was well understood by the plaintiff; and, as soon as complaint was made that it was insufficiently done, he recognized his duty in the premises, and promised to remedy the defect. This he failed to do; and after the defendants had waited, as they claim, a reasonable length of time for him to make the change, and the plaintiff still failing to perform his promise and make the same, they surrendered up the premises to the plaintiff and removed therefrom. . . . When a landlord rents a building, and in the lease, as in this case, limits its use to a certain specific purpose, and the tenant agrees to do no more than keep the same in as good repair as when taken, it is evident that the landlord recommends the building as suitable for the purpose in the condition it then is, if there are no modifying clauses to the contrary contained in the lease; and it should be so held; otherwise there would be no consideration for the tenant's agreement to pay rent" (7).

(7) Young v. Collett, 63 Mich. 331.

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