Fillebrown v. Hoar, 124 Mass. 580

Fillebrown v. Hoar

124 Mass. 580 | Mass. | 1878

Soule, J.

The eviction of a tenant from the demised premises, either by the landlord or by title paramount, is a bar to the recovery of rent reserved. Morse v. Goddard, 13 Met. 177. His eviction by the landlord from a part of the premises suspends the entire rent while the eviction continues. Leishman v. White, 1 Allen, 489. Royce v. Guggenheim, 106 Mass. 201. Colburn v. Morrill, 117 Mass. 262. His eviction by title paramount from a part of the premises is a bar pro tanto only, the rent being apportionable. 3 Kent Com. (12th ed.) 464. Fitchburg Cotton Manuf. Co. v. Melven, 15 Mass. 268. The ruling on this part of the case was therefore correct.

*584In covenanting to pay rent according to the terms of the lease, the plaintiff undertook to pay it in money, but it was competent for the parties to agree to receive and pay any part of it in any other way; and if the plaintiff did service, or furnished labor and materials for the defendant Hoar, under an agreement that the cost thereof should apply in payment of rent, the service, when rendered, or the labor and materials, when furnished, were, at once, payment of rent pro tanto. If their value was equal to the accrued rent when the lessor entered the leased premises, his entry was unlawful, because the rent had been paid, and there had been no breach of covenant by the plaintiff. If, however, the plaintiff had an unsettled account against the lessor, for services rendered, labor and materials furnished, or goods sold, without any agreement that it should be applied in payment of the rent, the entry was not unlawful, because such account would not support a plea of payment or satisfaction in an action for the rent, though it might be availed of by way of set-off, or in proceedings in equity to prevent the lessor from entering and expelling the lessee. Morrill v. De la Granja, 99 Mass. 383. If the repairs were made under an agreement that the reasonable cost should be applied on the rent, it was not necessary that they should be approved, and the cost settled and applied by the parties, before they could be regarded as payment. Dallman v. King, 4 Bing. N. C. 105. The exceptions to the refusal of the learned judge to give the instructions asked for in the fourth and fifth requests cannot therefore be sustained. If the fourth request had been complied with, the jury would have been permitted to find that rent was in arrear, because the lessor had refused to allow the cost of repairs made by the plaintiff under an agreement that it should apply on the rent. If the fifth request had been complied with, they would have been permitted to find that rent was in arrear, though the cost of repairs made under such agreement exceeded the amount of accrued rent, because the lessor made his entry before formally allowing and applying the cost to the rent.

The instruction asked for in the second request contains a correct statement of law, and an unqualified refusal to give it would have been good ground for exception. We think, however, that the instruction given sufficiently protected the rights of the de *585fendants on the point in question. The whole charge is not recited in the bill of exceptions,, and we must assume that the jury were properly instructed as to the right of the defendants to enter the premises if the rent was in arrear, and that the part of the charge which is recited was given by way of informing them as to what the plaintiff must show in order to establish the fact that the cost of the repairs made by him ought to be applied in payment of rent. Understood in this way, it is clear that the defendants were as fully protected by it as they would have been by the adoption, in connection with it, of the language of the request.

We are of opinion that the instructions given regarding the damages to be recovered were not so carefully guarded as the case required. It is true that if the defendant entered on the premises unlawfully, and expelled the family of the plaintiff, he did it wilfully, or with such gross carelessness of °the rights of the plaintiff that he is bound to make full compensation. Such compensation would include not only payment for injury to property, but for the wound inflicted on the feelings of the plaintiff. Meagher v. Driscoll, 99 Mass. 281. But the jury should have been instructed that the plaintiff was not entitled to recover for any injury to his health which resulted from any exposure in journeying from the premises to his father’s house, or from attending his family when ill, nor from grief that they were ill; and that the recovery, by reason of the effect of the eviction on him personally, must be limited to the injury to his feelings by reason of the indignity and insult of being unlawfully turned out of his home with his family.

The evidence admitted as to the subsequent illness of the members of his family was incompetent. It was no part of the injury for which damages were recoverable in this action, and it was no part of the act which wounded the feelings of the plaintiff. Its tendency was to enhance the amount of damages in the verdict, and the exception to its admission was well taken.

Exceptions sustained.