It was settled by a former decision in a case between these parties, that the plaintiffs can, under the quantum meruit counts in assumpsit, recover for any beneficial use the defendants had of the premises in question, on the principle laid down in Britton v. Turner,
The denial of the motion of the plaintiffs to change the form of action after the verdict in the former suit, on the ground that at that late date justice did not require the amendment, has no bearing on the question whether the former judgment for the defendants, not on the merits but on the defect in the form of action, is a bar to this action.
The defendants' ground of defence, that by reason of the plaintiffs' breach of their covenant to repair they are excused from paying rent, is not well taken. The breach of the covenant to repair is not a defence to the payment of rent. It enables the defendants to set up a claim for damages for breach of the covenant, either by way of recoupment or by way of cross action, as they may elect. Tay. L. T., s. 331.
The plaintiffs have the right to go to trial on the question whether the defendants had any beneficial use of the premises during the time specified in the declaration, in excess of the damage resulting from the breach of the covenants of the lease.
Case discharged.
CHASE, J., did not sit: the others concurred. *Page 452