| Superior Court of New Hampshire | Jan 15, 1850
Where there is an express covenant in a lease to pay rent during the term, without any proper exceptions, the rent must be paid, although the premises are accidentally burned down during the term. 1 Story’s Eq. 116. If, then, this estate for years had commenced, and the defendants had entered, it would now be no answer for them to say that the premises are for any cause uninhabitable. They have agreed to pay the rent from the beginning of the term, absolutely, without any conditions or exceptions. But the estate was not to commence until the lessor should finish the cellar, and have it in readiness for the occupation of the lessees.
The plaintiff offered evidence to show that the cellar was finished on the 14th day of December, 1847; that the defendants expressed themselves satisfied with it, and took possession and occupied for some time. Upon this evidence the jury might well find that the cellar was finished, and that the term had commenced. But the defendants allege that the cellar was not in fact finished,
Now if there was a defect in the construction of the cellar, whether that consisted in the want of a drain or otherwise, that in effect prevented it from being used, and this defect was unknown to the defendants, we think that they may show, in answer to a claim for rent, that, notwithstanding they took possession and expressed themselves satisfied with the condition in which it appeared to them, the cellar was not in fact fit for their occupation, and that, therefore, the term did not commence with their possession. If the defect were an obvious one, or was in fact known to them, their taking possession would be evidence of a waiver of objection on account of it.
If the cellar was finished in the manner in which cellars are commonly finished in that vicinity, and the difficulty has arisen from a cause and in a manner unexpected to both parties, the defendants, having taken possession, will be bound by the covenant in the lease to pay the rent.
But the rejected evidence had some tendency to show, that the cellar was not propei’ly finished. The admission of the defendants when they took possession, that it was finished, does not conclude them, and they may show the truth, notwithstanding, unless the admission assumed a conclusive character by having been acted upon in good faith by the other party, and by having been made for the purpose of inducing such action.
Such does not clearly appear to have been the case. The admission might have been made under a mistake. The evidence should, therefore, have been received.
The verdict must be set aside,.and a
New trial granted.