9 Mo. App. 354 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is an action upon a written lease, to recover four months’ rent due, the rent of a store-room and cellar in St. Louis, of which defendant was in possession under the lease. The answer admits the execution of the lease and defendant’s occupation under it, and, as matter of defence, sets up that the store and cellar in question are parts of a building owned by plaintiff, the lessor, the upper stories of which are occupied by tenants of the lessor; that the lessor put in water-pipes between the partition-wall which
If we rightly gather from his brief the view of counsel for appellant, it is that this answer is to be treated as if the implied covenant for quiet enjoyment were pleaded therein.
There has been no eviction from any part of the demised premises. The answer admits that defendant has remained in possession during the whole period for which rent is demanded. But where there has been no eviction, actual or constructive, there is no breach of the covenant for quiet enjoyment. Defendant has not been expelled by plaintiff, nor has he gone out on any pretext ot such acts of the landlord as render it impossible longer to remain, and indicate a present intention of the landlord, to drive him out. The act of the lessor in creating a nuisance in the alley was no •eviction of the tenant; nor was the fact that water-pipes running between the bricks and plaster of the walls and floor and ceiling, for the convenience of other tenements owned by the same landlord, burst, and rendered the demised premises unwholesome, and damaged defendant’s business and his stock of goods; any eviction of the tenant. It is not necessary to repeat what has been said on this subject in the recent case of Gray v. Gaff, 8 Mo. App. 329, or to refer anew to the cases there considered.
Green v. Bell, 3 Mo. App. 291, which counsel for appellant cites, is not in point. In that case there was a breach of the covenant to repair.
If the tenant be really driven out, or virtually compelled to quit by the illegal acts of the landlord, so that he goes
That damages for a trespass cannot be set off, under the Code, against contract, we need hardly say. Counsel for appellant does not contend that this can be done. Nor does the fact that the property conveyed by a sale, or the premises demised by a líjase, become the object of a wrong committed by the vendor or lessor against the vendee or lessee, make the wrong a subject of set-off, or recoupment, or counter-claim, in an action on the contract. Thus, in an action for the purchase-money of a horse, a plea that plaintiff, after the sale and transfer was complete, took the horse out from defendant’s stable and crippled him, would not be good either by way of-defence or recoupment. The subject of the action in the present case is the payment of rent. The fact that the rent issues from premises upon which plaintiff committed a trespass would not, even if such a case were fully made out in the answer, make the cause of action for this supposed trespass “ a cause- of action arising out of, the contract or transaction set forth in the petition as the foundation of plaintiff’s claim, or connected with the subject of the action,” in the language of the Code. In
There seems to be no ground upon which this answer can be held to set up a valid defence or a valid counter-claim. The judgment is affirmed.