Thе plaintiff, on March 31, 1927, leased to the defendant corporation for three years premises “to be used for the purpose of conducting and carrying on therein a delicatessen or restaurant business, and for no other purpose.” The action against the defendant cоrporation is for the entire rent from November 1, 1927, to March 31, 1930, amounting to $2,125. The action against thе individual defendants is brought to charge them with payment of the same rent because they guarantеed in writing that it would be paid when due. In both cases the defendants set up an eviction. In answer to a special question the jury found that there was a constructive eviction, and returned verdicts for the defendants. Both cases are here on the plaintiff’s exceptions, which in various forms present the single point that there was no evidence of eviction.
The evidence as to eviction is the following. The lease required the plaintiff “to install a heating system in said premises on or before September 1, 1927,” there being no existing means of heating them. About that date the defеndant corporation went out of business and assigned its lease to one Katz, with the assent of thе plaintiff, who preserved, however, by agreement with the defendant corporation and the individual guarantors, all his rights against both. The plaintiff failed utterly, though often requested, to install any heating system, an,d in consequence thereof Katz was unable to do business as the weather grew cold, and moved out on November 20,1927.
A constructive eviction has been defined as “Any act of a pеrmanent character, done by the landlord, or by his procurement, with the intention and effect оf depriving the tenant of the enjoyment of the premises demised, or of a part thereof, tо which he yields and abandons possession.” Royce v. Guggenheim,
Thе evidence warranted the finding of the jury that there was a constructive eviction. The premises were unfit for the intended use in our climate without the heating system which the plaintiff covenanted to furnish and which was included in the thing for which rent was to be paid. The deliberate failure of a landlord to perform a covenant of the lease to furnish something essential to the enjoyment of thе leased premises may be found to be an eviction. Brown v. Holyoke Water Power Co.
The cases in which a breach of covenant by a landlord to make repаirs has been held no eviction, are distinguishable, because performance of such a covenant is not necessarily indispensable to the enjoyment of the leasehold, and its breach does not ordinarily indicate an intentional and permanent deprivation of enjoymеnt. Royce v. Guggenheim,
We are aware that it has been said that “An eviction consists in taking from the tenant some part of the demised premises of which he was in possession; not in refusing to put him in possession of something which, by the agreement, he ought to have enjoyed,” and that it has been held that a breach of a landlord’s covenant to build a raceway for watеr necessary to the use of a leased mill constitutes no eviction. Etheridge v. Osborn,
We do not consider the exceptions of the defendants, for they have been waived.
Plaintiff’s exceptions overruled.