Anne Perrett and Husband v. Antoine Dupré and others, 3 Rob. 52

Morphy J. At the last September term, this court affirmed a judgment, decreeing the defendants to pay two instalments of rent due to the plaintiffs for a brick store and out-houses leased to them in the town of Opelousas, and pronouncing a dissolution of the lease. See 19 La. 343. The plaintiffs, in two suits, which have since been consolidated, now claim the three semi-annual instalments, which became due from the 15th of September, 1840, to the 15th of March, 1842.

The defendants aver that the lease under which the plaintiffs, claim has been annulled; that the plaintiffs have not complied with the terms of the lease, and have not kept the property in such a condition as they were bound to do ; that part of the premises consists of a large brick house, which has always been used as a'store, and in which they always had a large stock of goods on hand; that without any fault of theirs, the house has for a long time been in a state of decay and dilapidation, the walls and roof being cracked in many places, so that the rain and wind pass freely thyough, whereby the goods in the store have been injured to the amount of $1000.

They aver that they gave notice to the plaintiffs of the deterioration of the house, and requested them to cause it to be repaired, which , they have neglected and refused to do ; that by reason of the said cracks the house has lost much of its usefulness and value, and has not been so well fitted for the use for which it was leased as it was before ; that the plaintiffs, by failing to repair the house as they were bound to do, are liable to suffer a diminution of rent to the amount of $500 per annum, and to pay $1000 damages, There was a judgment below, in favor of the plaintiffs, for $1415, and the defendants have appealed.

The facts of this case ar.e materially the same as those pre sented by the record in the first suit, very little additional evidence having been introduced. It is undoubtedly the duty of the lessor of a house to keep and maintain it in a condition to be used for the purpose for which it is leased; if he fails to make all necessary repairs during the continuance of the lease, the tenant is, by law, authorized to cause them to be made himself, and to deduct the amount expended in making them, from the rent due.

It is equally true that the lessor is bound to indemnify the lessee, for all damages sustained by the latter in consequence of the vices and defects of the thing' leased, even if he knew not of the existence of such vices and defects at the time the lease was made, and even when they have arisen since! Civ. Code, arts. 2662, 2664, 2665. But in the present case it is proved that the house leased was in such a situation as not to be susceptible of being repaired.

The opinion of the workmen, consulted by both parties to this suit, was, that the house must be pulled down and entirely rebuilt, as the foundation had given way and sunk, and the walls had cracked in several places. As soon as the impracticability of repairing the house was ascertained, a dissolution of the lease was tendered to the defendants ; but they refused it, and continued to occupy the premises.

Though the house had really become unfit to be used as a store, yet, as it was known to the defendants that it could not be repaired,- and that they were at liberty to leave it, they complain with bad grace, of having suffered damages which it was in their power to avoid. But the evidence shows that the loss of the defendants, if they suffered any at all, was extremely small.

One of the defendants’ clerks testifies, that some goods in a small room below were' injured by the leaking of the house, but they did not sustain much damage, as.he was always careful to remove them; that he supposes the damage to have been about twelve per cent; that there might have been about $300 worth of goods on the side of the room where the leak existed; that a quantity of stockings and socks were wet, &c.

On the last trial, no attempt was made to prove any other damage to the stock of goods in the house ; and that spoken of by this single witness, appears to have been sustained after the defendants had rofused to leave the house. Volenti non fit injuria. It appears from the whole testimony that there was more apprehension entertained by the tenants and their clerks, lest the house should fall over their ' heads, than real inconvenience felt or injury sustained from the crazy condition in which it was. Swayze and Taylor, for the plaintiff. T. H. Lewis and W. B. Lewis, for the appellants.

As to the diminution of rent claimed by the defendants for the time they continued to occupy the premises, after the plaintiffs’ offer to annul the lease, we do not think them entitled to any. They clung to the possession of the property as long as it suited their convenience, and, by appealing from the judgment dissolving the lease, put it out of the power of the owners to oust them before the judgment was affirmed in September last. It was only a short time after, that they surrendered the premises.

Having thus withheld the property, by suspending the effect of the judgment dissolving the lease, and continued to use it as before, they should, in our opinion, continue to pay the same rent. The appellees have prayed for an amendment of the judgment,,which they contend should have been joint and several against the defendants, who are commercial partners. It is, therefore, ordered, that the judgment appealed from be amended, so as to be rendered joint and several against the defendants ; and that it be affirmed, with costs, in all other respects.