This is a landlord's attachment action, originally brought in a justice court, and from there appealed to the county court, in which plaintiff sought to recover $100, rent alleged to be due from defendant under a lease contract. Defendant by his amended answer admitted the lease contract with plaintiff, but denied owing any rent thereunder, by reason of a counterclaim for certain improvements and repairs made on the property, for which plaintiff had agreed to pay, as provided in the contract, but failed to do, and further alleged that there was a balance due defendant on their mutual account of $57.80. Trial was had and verdict returned in favor of defendant for $42.81, and from the judgment entered accordingly plaintiff appeals.
The lease contract contains the following provisions:
"Fourth. That during the tenure of this contract the party of the second part shall keep the houses, wells, and fences in repair at his own expense after the same is put in repair." *Page 594
"Twelfth. It is mutually agreed by the parties to this contract that for all repairing and improvements necessary on said farm the price for doing same shall be agreed upon by the parties to this contract in advance of any work done by the party of the second part."
It is insisted by plaintiff in error that, although plaintiff and defendant may have contracted subsequent to the execution of the lease, for certain improvements and repairs, yet that payment for such improvements and repairs was not a condition precedent to the recovery of rent by plaintiff, but an independent contract for the breach of which defendant should have brought a distinct and separate action; and that defendant should not have been allowed to set off against plaintiff's demand the value of such improvements and repairs. Plaintiff cites in support of his contention the case of Partridge v.Dykins,
The court by its second instruction told the jury that the account as set up and claimed by the defendant was a proper "offset" against the claim of plaintiff, and that if they believed the evidence of defendant they should give said defendant credit for whatever sum of money found to have been expended and costs incurred by him in compliance with an agreement entered into by him with plaintiff. It is contended by plaintiff in error that the court should have instructed the jury that the measure of damages was the difference between the rental value of the premises as they were and what they would have been if repaired as covenanted by the landlord; such an instruction having been approved in Partridge v. Dykins et al.,supra. In that case the repairs had not been made or paid for by the tenant at the time of trial, while here the tenant made the repairs and improvements, so that necessarily the rule there announced has no present application. The difference in the rental value of the premises as rented and as occupied would not compensate a tenant for repairs he made or improvements paid for, and which the landlord agreed to pay for. Hausman v. Mulheran, supra; Cheuvront v. Bee, supra; HeganMantel Co. v. Alford, supra; Varner v. Rice, supra; Ladd v.Hawkes,
The next proposition urged is that the court erred in refusing to grant plaintiff's motion for a new trial; there being filed in support of said motion, as one of the grounds therefor, an affidavit of one George Sirmons, to the effect that he was intimidated and threatened by the defendant in such a manner as to cause him to become ill and unable to attend the trial, where he would have been a witness for the defendant, and further setting out the nature of the testimony he would have given. The defendant filed a counter affidavit, denying that he had in any way intimidated Sirmons, so that he was unable to attend the trial as a witness, etc. If the allegations of Sirmons were true, defendant would have been guilty of the misdemeanor of obstructing justice. Section 2258, Rev. Laws 1910; Bowes v. State,
The judgment should be affirmed.
By the Court: It is so ordered. *Page 597