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When the landlord assures the tenant that the premises are in good condition in any respect to induce him to take the lease, or with knowledge or suspicion of any defect resorts to any artifice to prevent the proposed tenant from discovering the defect, there is a substantial fraud which will enable the tenant to avoid the lease and defeat an action for the rent; and if the landlord conceals a dangerous condition the tenant may recover any damages he suffers therefrom (8). See $ 50, below.

§ 22. Same: Possession, enjoyment, and so forth. There is an implied covenant or promise from every lease which has nothing express on the subject that the lessee shall be allowed to take possession without molestation or hindrance by the lessor or any other, and that he shall have the quiet enjoyment of the premises during the whole term. If possession is withheld, the lessee may, after making formal entry, bring ejectment against the lessor or other persons restraining him, and recover possession and damages to the value of the term for the time lost, but not generally any prospective profits he hoped to make in business on the place. The landlord is not bound to put the tenant into possession, and is not liable for trespasses committed by strangers during the term.

There is also an implied promise on the part of the lessee that he will pay the reserved rent and observe the other stipulations of the lease, whether he signed it or not, commit no waste, and that at the end of the term he will redeliver the possession to the lessor.

(8) Milliken v. Thorndyke, 103 Mass. 385.

§ 23. Interpretation of leases: General rules of construction. The general rules of construction of all written instruments apply to leases, viz.: the object is to find the intention of the parties, which is primarily to be gathered from the instrument as a whole and not from single expressions; a reasonable and lawful intention is to be presumed in preference to an unreasonable or unlawful one; such a construction is to be given as will give effect to the whole instrument and reconcile all its provisions if possible, but if impossible the first provision prevails over the later one, except that when one is printed and the other is written the written clause controls, as the more likely to express the true intention of the parties; doubts are to be resolved in favor of the lessee, because the writing is furnished by the lessor and is supposed to be his language; words are to be understood according to their ordinary meaning, except that technical and trade terms are to be given their technical or trade meaning; the court will consider the relations of the parties to each other and the property, and receive evidence of the circumstances under which the lease was made to enable the judges to put themselves as nearly as possible in the position of the parties and see things and interpret language from their point of view, but will not listen to what the parties now wish to say they intended by the language they used; the construction agreed to and acted on by the parties is correct; the whole contract is presumed to be contained in the writing, and all prior negotiations, terms, and stipulations are presumed to have been abandoned unless incorporated in the writing; but subsequent modifications supported by sufficient consideration are binding though not indorsed on the lease nor reduced to writing. An independent prior contract may be proved to explain the lease though the prior contract was merely by word of mouth.

§ 24. Same: Length of term. Description of property. A lease may be made to begin as from a past date, and a dated lease is presumed to begin from the date, an undated one from the delivery of it. Conflicts between the length of the term granted and the time the lease is to end as stated in the lease are charged to error in computation, and it is held to be a lease for the length of time granted, and the time for ending must yield. Where there are two descriptions of the premises leased and they do not agree, the estimate of the number of acres must yield to the description by location or name; in descriptions by metes and bounds, courses and distances are controlled by the monuments referred to; a grant to a street or stream extends to the middle of it if the lessor owns so far; a false description does not vitiate, if there is a sufficient description without it. A lease of a house by street and number includes the lot on which it stands and the appurtenant out-buildings; a lease of rooms and apartments includes the right of way thereto from the street; a lease of a building includes the right to use the outer walls for advertising purposes. A lease of the mines on land described where no mines are opened includes the right to open any mine for any mineral on any part of the premises; but if there are opened mines, the lessee has no right to open new mines. A lease of a farm does not pass the right to open a mine on it. A lease of land on which crops are growing passes them to the lessee unless the crops are expressly reserved.

§ 25. Same: Dependence of promises of parties. If covenants are independent one party may sue and recover for a breach by the other party though he has not performed his own covenants yet; but if they are dependent, suit before performance by the plaintiff is premature. Whether they are dependent is determined by express provision, or more often by the rule that if they are to be done concurrently, one for the other, they are dependent; if they are to be done at different times, if the covenantor has had the benefit of the covenant on his part, or a penalty for breach is provided, they are independent. The landlord must perform before he can sue on a contract to repair with materials to be furnished by the lessor, to keep in repair after the lessor has repaired, or to pay rent after being given possession. He may recover the rent though he has not kept his promise to keep in repair during the term. SECTION 2. COVENANTS IN LEASES AND THEIR EFFECT.

26. Covenant for quiet enjoyment. As stated, a covenant for quiet enjoyment is implied from the fact of lease; but this implied covenant may be extended or restricted to a great extent by express provision. There can be no recovery for breach of a covenant for quiet enjoyment, either express or implied, without an actual or constructive eviction of the tenant or one holding through him. What acts will amount to an eviction is often difficult to determine. It has been held that the covenant is not broken by the mere existence of an outstanding paramount title, where the lessor acted in good faith and the lessee has enjoyed the possession undisturbed during the term, nor even though an action of ejectment has been commenced against him, there being no other evidence or acts of eviction. In a Massachusetts case an action for damages for breach of the covenant for quiet enjoyment was held not sustainable, the court saying: “Of the parties to these actions between landlord and tenant, the latter, having remained in possession until the end of the term demised, now alleges as an eviction the fact that during the term his landlord entered on the premises under a claim of right to repossess them for breach of covenants by the tenant, on which final judgment for the tenant was rendered; and he further alleges as breaches of the implied covenant for quiet enjoyment, the same entry and suit, and the fact that the landlord, knowing that the premises were of value to the tenant only for his business of common victualler and seller of liquors, caused the license commissioners to refuse him a liquor license, and also caused his license as a common victualler to be taken from him wrongfully and without right. None of these acts were an eviction of the tenant, nor an ouster equivalent to an eviction, for the reason that he remained in the occupation of the premises until the end of his term; and for the same reason, if for no others, none of them worked a breach of the implied covenant for quiet enjoyment. The entry was a formal one, not interrupting the ten

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