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than is absolutely necessary to comply with the order (16).

§ 58. Agreements to repair: Construction and effect. A covenant to put in repair can be broken but once, and is available only to the lessee; but a covenant by the landlord to keep in repair runs with the land and reversion, and may be sued on by the assignee of the lessee against the lessor's grantee. A clause excusing the lessee from duty to make certain or all repairs does not by implication impose any obligation on the landlord to make such repairs. Nor will a covenant to repair be implied from the reservation of the right to enter to make repairs, nor from the fact that the lessor has gratuitously made some repairs, nor from his covenant to pay for repairs the tenant may make. A covenant to build on the premises before the tenant takes possession, or to put the premises in a state of repair before the term is to begin, imposes no duty on the lessor to keep the premises in repair after that during the term. A covenant to build does not impose a duty to rebuild if the house is destroyed by fire after the tenant takes possession; but a covenant of the landlord to keep the premises in repair requires him to rebuild them if destroyed during the term without the fault of the lessee. The sort of repairs that a covenant requires depends on the nature of the premises and the condition in which the tenant is to accept them at the beginning of the lease. If the lessor keeps the premises in as good condition as they were at that time the covenant is satisfied. He is not bound to make general

(16) Kansas Inv. Co. v. Carter, 160 Mass. 421.

or extensive improvements under such a covenant, nor to make repairs caused by the negligence of the tenant, nor does such a covenant excuse the tenant from liability for such injuries. The absence of duty of the landlord to make repairs does not excuse him from liability to the tenant in tort for injuries done him by the negligent manner in which the repairs are made by the lessor.

$ 59. Tenant's remedies for breach of lessor's contract to repair: In general. If the lessor fails to put the premises in repair before being occupied and has agreed to do so, the lessee may refuse to occupy and defend any action for rent, or he may sue for damages for breach of the covenant whether he does or does not go into possession. Or he may make the promised repairs himself and sue and recover the cost of the lessor, or deduct it from the rent, or set it off against the lessor's demand in a suit for the rent. If the failure to make the promised repairs caused the premises to become untenantable, or if they were untenantable and the lessee took possession in the expectation that the lessor would immediately make the repairs, in which the lessor disappoints him, the tenant may abandon the lease and refuse to pay rent for longer than the time he occupied. But the covenant to pay rent and the covenant to make repairs are independent; failure to make the promised repairs does not excuse the tenant from his liability to pay the agreed rent for the time he was in possession, less the damages claimed and proved by him resulting from the breach of the covenant of the lessor to repair; and on the other hand he may sue for breach of the covenant to repair without haying paid his rent. For the same reason he cannot abandon the lease and avoid liability for the rent merely by reason of the breach by the landlord of his covenant to repair unless the want of repairs renders the premises untenantable (17).

In order to charge the lessor for the cost of repairs he promised to make, and which the tenant has made and paid for, the tenant must show that he notified the lessor of the need of the repairs and gave him opportunity and time to make them before undertaking the task himself; for otherwise the lessor is not put in fault, as he has the privilege of making the repairs himself if he desires to

do so.

$ 60. Same: Form of action. In case of suit for damages for failure to make the repairs it is important to observe the form of the action, as that may affect the measure of damages recoverable. In an action in tort the plaintiff may recover the damages he has suffered from the intentional or negligent wrongs done him by the defendant regardless of contract; but in an action on contract for breach of the covenants of the lease the plaintiff can recover only the damages he has suffered from the breach of the contract. In an action in tort for injuries the plaintiff suffered from falling through a barn floor, which the defendant as his lessor had promised to repair, the court said:

“If a lessee is injured by reason of the unsafe condition of the premises hired, he cannot maintain an action

(17) Piper v. Fletcher, 115 Iowa 263 (holding an untenantable condition and abandonment therefor a good defense to an action for rent).

against the lessor in the absence of warranty or misrepresentation. In cases where lessors have been held liable for such injuries to the lessees, the liability is founded in negligence. The plaintiff admits the general rule, but claims that this case is taken out of it, because, at the time of the letting, the defendant agreed to repair and put in safe condition the stable floor, the unsafe condition of which caused his injury. . . The question is whether, for such a breach [of contract], the plaintiff can maintain an action of tort to recover for personal injuries sustained by reason of the defective condition of the stable floor. The cases are numerous and confusing as to the dividing line between actions of contract and of tort; and there are many cases where a man may have his election to bring either action. When the cause of action arises merely from a breach of promise the action is contract. The action of tort has for its foundation the negligence of the defendant, and this means more than a mere breach of a promise. . . . In the case at bar the utmost shown against the defendant is that there was unreasonable delay in its part in performing an executory contract." And so no cause of action (18).

$ 61. Same: Where covenants of lessor and tenant are independent. In an action to enjoin prosecution of summary proceedings to oust complainant and for damages for breach of certain covenants, including the payment of rent, the complainant alleged that the defendant had not made the repairs he covenanted to make. The court said: “The plaintiff having entered upon the demised

(18) Tuttle v. Gilbert Mfg. Co., 145 Mass. 169.

premises under the lease, and continued in possession, was bound to pay the rent reserved, and it could not defend on the ground that the covenant on the part of the lessor to put the premises in repair, or to make changes and alterations required by municipal or other legal authority, had not been performed. On the other hand, the lessor, when sued on its covenants, could not allege in bar of the action, that the lessee had remained in possession of the premises, but either one, in an action brought against him by the other, could counterclaim any demand arising under the lease against the plaintiff in the action. The tenant in a suit for the rent, could recoup any damages for a breach of the covenants to repair; and the landlord, if sued by the tenant for a breach of the covenants on its part, could counterclaim the rent reserved in the lease. .. The lessee is not bound to give up its lease to avail itself of the landlord's covenants, and a rule that remaining in possession would constitute a bar to his action would defeat one of the very purposes of the rule that covenants of this character are separate and independent” (19).

$ 62. Same: Measure of damages. “Where a contract is made in view of an already existing contract with a third person, and the contract sued on is made with special reference to such contract, and to enable the party to carry it out, then the loss sustained or the profits which might have been realized, on such contract with a third person, may be proper subjects for consideration.

(19) Thomson-Houston Elec. Co. v. Durant Land Co., 144 N. Y. 34,

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