ADDISON MANVILLE, Plaintiff in Error, vs. ROYAL GAY and EMILY LEE, Administrators of the estate of Gay W. Lee, Defendants in Error, 1 Wis. 250

By the Oourt, Whitow, C. J.

The judge having allowed the defendant below, for the repairs stipulated ^01’ m ^he lease> the only questions arising m the cáse, are, upon his ruling, by which he excluded testimony offered by the defendant below, at the trial, to prove that certain repairs made by him, to the demised building, and materials furnished therefor, were agreed by the parties to be applied in part, payment of the rent; and also, testimony offered by the defendant, to prove that other services performed by the defendant for the plaintiffs intestate, were agreed by the parties to be so applied; and also, that at the time of executing the lease, and when the defendant entered into the possession of the building, there was a flight of stairs upon the outside of said building, which were party stairs of this and an adjoining building, and which were torn down during the occupancy of the building by the defendant, by the rightful removal of the adjoining building; that the stairs afforded the only means of access to the chamber of the building ; and that the occupancy of the building was rendered less valuable by the removal of the stairs.

We think the ruling of the judge was correct. The action was assumpsit, on the note given for the rent of the building, and the plea was the general issue simply. The plaintiff in error is quite correct in maintaining that payment can be given in evidence under the general issue, in an action of assumpsit; but we do not think that the testimony offered by the defendant below, tended to prove a payment. It tended to show an agreement on the part of the lessor, to apply the value of certain labor and materials to the payment of the rent for which the note was given, and nothing more.

It is not pretended, that the amount to be applied was agreed upon by tie parties ; much less, that any application was in fact made by them.

To consider an executory agreement,to apply the value of certain services and materials to the part payment of a debt, when the amount to be applied is uncertain and unliquidated, as a payment in fact of the debt, to the amount which the labor and materials shall be proved to be worth, would be, to hold that to be a payment, which is properly the subject of a set-off; and, to prove a set-off, the testimony offered would have been admissible, if the defendant had pleaded it, or given notice of it-under the general issue.

But without such a plea or notice, the set-off could not be proved. (1 Chit PI. 605, 606.) We do not think that the testimony offered to prove the removal of the stairs, tended to show an eviction of the defendant from any portion of the premises demised, so as to entitle him to have the rent apportioned. But, if it was, it is doubtful whether the testimony was admissible under the plea. When the defendant has been prevented from occupying the demised premises, he is not obliged to pay any rent, because the consideration for the agreement to pay the rent has wholly failed.

So, for the same reason, when the tenant has been evicted from the entire premises, he is not obliged to pay rent after the eviction. And after an eviction from a portion of the premises demised, he would be liable only to pay rent for that portion which he continued to occupy; and, it would seem for the same reason, that the consideration for his agreement to pay the rent has in part failed. (1 Greenl. Cruise Dig., 102, 103, note.) But a partial failure of consideration cannot be given in evidence under the general issue, On fke questions raised at the trial, we think judge’s ruling correct.

The judgment must therefore he affirmed.