3 Whart. 150 | Pa. | 1838
The opinion of the Court was delivered by
The law is now settled in Pennsylvania, that in replevin a set-off is inadmissible in the sense in which that term is commonly used: but that under our defalcation act, the tenant may, in replevin, deduct from the rent due to the landlord, the damage he may have sustained by the landlord’s breach of a covenant in the same lease, relating to the demised premises, and constituting part of the consideration of the rent. Gray v. Wilson, (4 Watts, 39); Fairman v. Fluck, (5 Watts, 516); Beyer v. Fenstermacher, (2 Whart. 95).
In the present case, the act of the landlord in taking the bulk windows, &c., appears to have been done, not under the covenant in the lease, but independent of it altogether. Eor the provision in the lease is to take them at a fair valuation, with the deduction therefrom of the $50 which the landlord was to ■ contribute. Clauses of this kind are intended to give the landlord an option either to take the improvements on paying for them, or to permit the tenant to remove them after the expira
It is well settled, that an independent tort committed by the landlord, cannot be made the ground of defalcation by the tenant in replevin — nor, indeed, by a defendant in any action.
As to the second error, we are of opinion that it does not arise on this record. The avowry is for rent in arrear from Jackson as tenant. The replication does not deny this tenancy by Jackson; or that the rent was due and in arrear from him. It in effect confesses these facts and avoids them by setting up a right of defalcation for a claim against the landlord, wMch the plaintiff was willing, and offered, and still offers to make. The . proceedings in the Court below on the other'issues are not before us, and cannot be inquired into on this record.
Judgment affirmed.
Cited by Counsel, 4 Wharton, 227.
See also, post, 19S.