52 Mich. 630 | Mich. | 1884
Plaintiffs, as lessors of a building, sued defendant on the common counts for use and occupation. The claim they set up on trial was for rent under the covenants of a written lease.
Defendant based her defense on the substitution of a new verbal agreement whereby plaintiffs undertook to repair the building, and she sets up by way of recoupment, damages to her goods in the building.
The agreement which she sought to establish but which the circuit court held insufficient, was that the property was out of repair and she omitted to pay a part of the rent. Plaintiffs gave her notice to quit, and she accepting the notice, at once made arrangements to go into another building, but was induced to remain on the landlord’s agreement to put the premises in order.
As the court took* the case from the jury, and as the whole controversy essentially turns on the legal sufficiency of such an arrangement as defendant sets up, there is no
The main reasons set up against it are that it changes a written instrument, and is without consideration because a promise to pay the same rent already covenanted to be paid' is only a promise to -do a duty and forms no consideration for promises by the landlord.
It is agreed on both sides that the original lease did not require the landlord to repair. But defendant offered to show that he had given her notice to quit, and she had accepted it by proposing to act upon it by seeking other premises. This clearly justified her in treating the term as ended. The new agreement, while it adopted the annual rental of the old one, was a distinct and independent lease, valid although verbal, because for less than a year, and fixed 'the rights and duties of both parties. The change in terms negatives entirely the idea that it can be regarded as a continuance of the old lease. There is no rule of law-forbidding the relinquishment of existing contracts and the substitution of new ones in their stead, and that is what was done here.
It was error, therefore, to refuse to allow legal force to the claims of defendant, and the judgment must be reversed, and a new trial granted accordingly.