249 Pa. 314 | Pa. | 1915
Opinion by
This is an action of assumpsit by a landlord against his tenant to recover rent due on the demised premises, known as Forepaugh’s Theatre and situate in the City of Philadelphia. A.rule was taken for judgment for want of a sufficient affidavit of defense, and judgment having been, entered for part of the plaintiffs’ claim the defendant has taken this appeal,.
We think the learned court erred in not sustaining the' set-off of -$2,250 claimed in section 2 of paragraph 8 of-
The learned court below held that the closing of these openings, as averred in. the affidavit of defense, , did not amount to an entire or partial eviction from the demised premises because there was no covenant that they should remain open.
It is true that there is no implied warranty that the premises are fit for the purposes for which they are rented, but there is an implied covenant for the quiet enjoyment of the demised premises, and it is settled in this
The learned counsel for the appellee cites, as sustaining the court below, the case of Hazlett v. Powell, 30 Pa. 293. He fails to distinguish the difference in the facts of the two cases. In that case the windows of the demised building opened on the ground of an adjoining owner who erected a party wall by which the windows were closed. Here, the openings were dosed by the act of the landlord and not by the owner of the. adjoining property. The appellee further contends that he is not liable for damages by reason of the closing of the openings because they were in a party wall and were illegal and were
We cannot say from an inspection of the affidavit of defense that the court erred in disallowing the item of $300 which, it was held, is included in the larger item allowed as damages for the time the landlord occupied the premises for the purpose of making certain changes. The learned court was clearly right in holding that the defendant could not set off the unliquidated damages arising from the alleged trespass committed by the lessors on the adjacent premises. This is an action of assumpsit for rent due on the demised premises, and damages occasioned by the alleged illegal acts committed by the landlord on the adjoining premises are recoverable in an action ex delicto by the tenant against the landlord and cannot be set off in this action to recover the rent. Unliquidated damages arising ex delicto cannot be set off in an action of assumpsit.
The court below is directed to modify its judgment in accordance with tha-views expressed in this opinion, and as thus modified the judgment is affirmed.