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, 6 N.H. 481" court="None" date_filed="1834-07-15" href="https://app.midpage.ai/document/britton-v-turner-8503954?utm_source=webapp" opinion_id="8503954">6 N.H. 481, notwithstanding the defendants were holding under a written lease under seal. Meredith Mechanic Association v. Drill Company, 66 N.H. 539" court="N.H." date_filed="1891-06-05" href="https://app.midpage.ai/document/meredith-mechanic-assn-v-american-twist-drill-co-3551651?utm_source=webapp" opinion_id="3551651">66 N.H. 539. The plaintiffs can recover under the quantum meruit counts in assumpsit for the use and occupation of the premises from July 1, 1887, to July 1, 1888, notwithstanding they have already brought one suit in debt for rent on a written lease under seal, covering the same period, and a judgment was rendered against them upon the ground that the form of action was; misconceived. The issue in this case is not the same as in the former case, although both suits may have reference to the same subject-matter. The issue in the former suit was, Did the plaintiffs evict the defendants? — the issue in this suit is, Did the defendants have any beneficial use of the premises? — and the judgment in the former suit, not being on the merits of this, is not a bar. King v. Chase, 15 N.H. 9" court="None" date_filed="1844-07-15" href="https://app.midpage.ai/document/king-v-chase-8504730?utm_source=webapp" opinion_id="8504730">15 N.H. 9; Gage v. Holmes, 12 Gray 428.
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.