44 W. Va. 103 | W. Va. | 1897
Lead Opinion
Joseph Cheuvront, plaintiff, instituted an action of debt upon a promissary note of three hundred dollars, due for rent of the Grant House, bearing- date October 3, 1892, against M. C. Bee et al., defendants, in the circuit court of Doddridge county, and obtained a judgment thereon for the sum of one hundred and sixty-nine dollars and seventy-nine cents. Defendants obtained a writ of error, and now rely on the following assignments: (1) The court erred in overruling the demurrer to the declaration ; (2) in rejecting the two special pleas tendered by defendants ; (3) in refusing to admit the testimony offered by defendants ; (4) in overruling- the motion to set aside the verdict and grant defendants a new trial.
The only matter urged in support of the first assignment is the failure to allege a consideration for the note. This is wholly unncessary. Bart. Law Prac. p. 106, § 12; Peasley v. Boatwright, 2 Leigh, 195; State v. Harmon, 15 W. Va., 122. Part of the syllabus in the first case cited is, “In debt on promissory note, held, plaintiff need not aver in declaration, or prove, consideration, though defendant may go into evidence touching consideration.”
The last three assignments are all dependent on the same legal questions, and therefore can all be considered together. The defendants, in their special pleas, set out that the consideration for the note in controversy was for rent of an hotel, secured by a lease, in which the plaintiff had covenanted to repair ; that he failed to do so; that defendant M. C. Bee notified him to make the repairs, and, having waited a reasonable time, made them himself, — and asked that the same, fully itemized, might be offset against the rent. To the plea of payment was also attached an itemized account of these repairs, but the court refused to allow any evidence in relation thereto to go to the jury. The sole question thus presented was as to whether defendants had the right to have recouped against the rent the repairs made by them, which the landlord had stipu
Dissenting Opinion
{dissenting):
I cannot concur in a portion of the foregoing opinion of Judge Dent, for the following reasons: As is stated in said opinion, this action was brought upon a note for three hundred dollars, which was executed as a portion of the rent for the Grant House, in pursuance of a written lease, in which the landlord, Joseph Cheuvront, covenanted to keep said property in repair, except where broken by said second party, in which event he was to repair or replace the same. It appears on the face of the lease that said lessor leased to the tenant the personal property in the hotel, with certain exceptions. It was claimed by way of defense that the landlord failed to keep the property in repair after notice to do so, and the defendant made the repairs himself, and by his pleas claimed the right to set off the repairs so made against the note sued on, for the rent. Can this be done? If so, it would allow a tenant, under the circumstances, to select the kind and character of repairs to be made, whether costly or otherwise, and to make them at the expense of the landlord; and in this way he might consume the entire rent. If the tenant is damaged by the failure to repair on the part of the landlord, he is entitled to such damages as he may sustain thereby; but he cannot make such repairs as he may deem advisable, and set them off against the rent; and the very bill of set-offs filed in this case, consisting of new tablecloths, napkins, towels, sheets, carpets, etc., shows what this tenant considered as proper repairs to set off against the rent. That repairs were not allowed to be set off by the tenant against a claim for rent at the common law is seen from the following authorities : In 1 Tayl. Landl. & Ten. (8th Ed.) § 328, the author says: “In conforming to this principle, it was laid down by Chief Justice Savage that at common law it is not in the power of a tenant to make repairs at the expense of
Reversed.