The opinion of the court was delivered by
Royce, J.
This was an action of ejectment brought before a justice of the peace under sections 22, 23, c. 46, Gen. Sts. The only exception taken by the defendant was to the pro-forma ruling of the court directing a verdict for the plaintiff, and to that portion of the charge detailed in the exceptions. No exception appears to have been taken by the plaintiff. The exception to the charge is not now insisted upon. Was there error in directing a verdict for the plaintiff ? In determining that question it is necessary to examine the theory upon which the case was tried, and the facts found by the jury. Both parties upon the trial without objection introduced evidence tending to show what the contract was that was made between the parties at the time the premises were leased. The rent, it is agreed, was to be $30 a month. But the defendant’s evidence tended to show that, as a part of the consideration for her agreement to pay said rent, the plaintiff was to make certain improvements upon the property, which have not been made; and that, in consequence of their not having been maae, the use of the premises had not been worth $30 a month during the time she occupied them down to the commencement of this suit, and in fact had been worth only $18 a month. The rent was paid to the first of August. The defendant refused to pay the rent due on the first of September, because the plaintiff had *502not done as he agreed; and claimed that the damage she had sustained on account of the improvements not having been made was more than the unpaid rent for that month. The plaintiff’s evidence tended to show that he made all the improvements upon the property that he agreed to make. The jury found specially that plaintiff did agree to make the improvements upon the property that the defendant’s evidence tended to show. The court charged the jury that in ascertaining the amount due to the plaintiff at the time of trial, they should deduct from the rent that would be otherwise due, such sum as the premises were worth less than they would have been if the improvements had been made upon them that the plaintiff agreed to make. The jury did make' the deduction as directed, but it was not so made as to enable this court to render a final judgment. It was incumbent upon the plaintiff to show that there was rent in arrear at the commencement of his action; and it was the right of the defendant to oppose any such claim of the plaintiff by proof that there was no rent due. The defendant’s evidence tended to show that the premises while she occupied them, down to the 1st of September were worth $12 a month less than they would have been if the improvements had been made. Upon that basis of estimating the rent that she was under obligation to pay, she had more than paid the rent due the 1st of September. It was the right of the defendant to have that evidence submitted to the jury upon the question as to whether there was any rent due to the plaintiff at the time he commenced his action, unless she waived that right by the payment of rent due August 1st; and we do not think that the payment of the rent claimed at that time can be treated as a legal waiver of her right to. recoup the damages she had sustained resulting from a breach of the contract under which the rent was claimed. Hence it was error to direct a verdict.
The testimony upon the question as to whether the plaintiff by the contract had the right to re-enter upon the failure of the defendant to pay any installment of the rent was conflicting, and should have been submitted to the jury. If determined in the affirmative, it would be conclusive of the right to maintain the action, if there was rent in arrear.
*503The question raised as to the right of the plaintiff to maintain the action without proving such a stipulation, we do not decide. The pase was heard by only three judges, and we have not come to a perfect agreement upon the question.
Judgment reversed, and cause remanded.