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the term for which he was sought to be held liable. Kenyon v. Young, 48 Neb. 890 (67 N. W. Rep. 885). A lessee cannot defend against an action for rent brought on a written lease by showing a parol agreement for cancellation of such lease and the execution of another in its place, which agreement is not enforcible on account of the statute of frauds. Leavitt v. Stern, 159 Ill. 526 (42 N. E. Rep. 869). When lessees enter into and retain possession of the rented premises under a covenant in the lease that the landlord will make improvements, which he fails to do, the lessees, when sued for the rent, may recoup the damages resulting from such breach of the covenant, or set up the resulting damages as a counterclaim. Pioneer Press Co. v. Hutchinson, 63 Minn. 481 (65) N. W. Rep. 938). A counterclaim by a lessee for damages in an action for rent brought against him by his lessor need not allege that the damages are due and unpaid. Jennings v. Bond, 14 Ind. App. 282 (42 N. E. Rep. 957). A judgment for rent may be taken upon confession either by the lessee or his duly authorized attorney. Ill. Rev. Stat., ch. 110, § 66, applied. Fortune v. Bartolomei, 164 Ill. 51 (45 N. E. Rep. 274). A lessor's administrator may sue on a covenant of one agreeing to "become surety for the prompt and full payment of the rent and performance of the covenants as specified" in the lease. Walsh v. Packard, 165 Mass. 189 (42 N. E. Rep. 577; 52 Am. St. Rep. 508). Where a lessor brings an action of ejectment against his lessee who yields possession in obedience to such action, this operates as a constructive eviction and is a defense to an action for rent subsequently accruing. Jennings v. Bond, 14 Ind. App. 282 (42 N. E. Rep. 957). Recovery is limited to the amount of rent due at the commencement of the action, and where rent is payable monthly, the rent of the current month cannot be divided so as to allow plaintiff to recover for that portion which has elapsed before the bringing of his suit. Stanley v. Turner, 68 Vt. 315 (35 Atl. Rep. 321). Where one seeks to collect rent by distress he must comply strictly with the statute or he will be a trespasser. Wyke v. Wilson, 173 Pa. 12 (33 Atl. Rep. 701). The common law right to distrain for rent does not prevail in Oklahoma. Smith v. Wheeler, 4 Okla. 138 (44 Pac. Rep. 203). Va. Code 1873, ch. 148, § 4, construed and applied

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attachment against a tenant for rent. Offterdinger v. Ford, 92 Va. 636 (24 S. E. Rep. 246).

Sec. 452. Repairs. A covenant to keep in repair is not a covenant to rebuild in case the premises are destroyed. Leonard v. Read, Tenn. (36 S. W. Rep. 581). A covenant to keep leased premises in repair imposes upon the tenant the obligation to keep" the premises in as good repair as when the agreement is made, St. Joseph & St. L. R. Co. v. St. Louis, I. M. & S. Ry. Co., 135 Mo. 173 (36 S. W. Rep. 602); and one who covenants to " keep" premises in good repair may be compelled to put such premises in good repair where they were out of repair at the time the covenant was made, Miller v. McCardle, 19 R. I. 304 (33 Atl. Rep. 445; 30 L. R. A. 682). Where a lease of a warehouse for a term to begin on a future day provided that there should be no abatement of specified rent on account of a destruction or injury of the property, but that the lessor should rebuild in a reasonable time, and the lessees were to keep the property in as good repair as when turned over to them, it was held that it was the lessor's duty to repair an injury to the property occasioned before the beginning of the term. Lightfoot v. West, 98 Ga. 546 (25 S. E. Rep. 587). Construing and applying the statute (Cal. Code Civ. Proc., § 1452), providing that an executor "must keep in good, tenantable repair all houses, buildings and fixtures" upon the real estate belonging to the estate, it is held that an executrix may properly claim an allowance for moneys expended in good faith for the repair of unsafe buildings on her estate, although, on account of municipal regulations, such repairs amounted to a rebuilding. In re Clos' Estate 110 Cal. 494 (42 Pac. Rep. 971).

Sec. 453. Miscellaneous notes. A landlord is not liable, in the absence of a contract to that effect, for damages to his tenant's goods occasioned by leakage which resulted from injuries to the building by an extraordinary, unforeseen storm, which injuries he had no opportunity to repair. Where liability exists in case of injury to goods the measure of damages is the difference between their market value immediately

before the injury and their market value immediately after the injury. Brunswick Grocery Co. v. Spencer, 97 Ga. 764 (25 S. E. Rep. 764). Damages for a breach of a landlord's agreement to furnish water for irrigation, whereby his tenant's crops were injured, cannot properly be determined by proof of the crops which could have been raised had the water been furnished according to the agreement and their market value, without any proof as to the cost of their production, harvesting and marketing. Knowles v. Leggett, Colo. App. (43 Pac. Rep. 154). Where a landlord obtains a judgment for possession against his tenant who appeals and gives bond under the statute (Md. Code, Art. 53) to secure the rent pending the appeal which is decided against the tenant, the landlord, by accepting payment of the rent thus secured, does not waive his right to regain possession under his judgment. Hopkins v. Holland, 84 Md. 84 (35 Atl. Rep. 11).

LEASES.

Sec. 454.

EPITOME OF CASES.

What constitutes a lease-ExecutionValidity. Merely designating an instrument as a lease is not conclusive as to its character where the instrument shows by its terms that it is a different kind of a contract. St. Joseph & St. Louis R. Co. v. St. Louis, I. M. & S. Ry. Co., 135 Mo. 173 (36 S. W. Rep. 602). Particular instrument in which a reservation by a grantor of the absolute title to a portion of a second story of a building was held to amount to a lease which terminated upon the destruction of the building. Leonard v. Reed, Tenn. (36 S. W. Rep. 581). The validity of a lease under seal executed by one member of a firm, in the firm name, cannot be assailed by the other member where he was instrumental in procuring the lease and assented to its execution. Bodey v. Cooper, 82 Md. 625 (34 Atl. Rep. 362). Particular facts held insufficient to show the execution of a lease. Stetson v. Briggs, 114 Cal. 511 (46 Pac. Rep. 603). The pro

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visions of a written lease cannot be avoided by proof of a contemporaneous parol agreement. Taylor v. Hunt, 118 N. C. 168 (24 S. E. Rep. 359). In the absence of statutory authority county commissioners cannot lease rooms in a court house to be used for private purposes. State ex rel. Scott v. Hart, 144 Ind. 107 (43 N. E. Rep. 7; 33 L. R. A. 118). A lease by a railroad company of property not connected with its line is not permitted by the statutes of Pennsylvania and will not be enforced by the courts of that state although both parties to it are foreign corporations and such lease is valid under the laws of their native state. Van Steuben v. Central R. Co., 178 Pa. 367 (35 Atl. Rep. 992; 34 L. R. A. 577). A lease of an incompleted building for such a term of years as to require a written lease under the statute of frauds, "from the completion of said building," is not void because the time for its commencement is uncertain and must be fixed by parol, but is a valid lease in præsenti for a term to commence in the future, the element of certainty in the commencement of the term being satisfied by the completion of the building. Hammond v. Barton, 93 Wis. 183 (67 N. W. Rep. 412), following Colclough v. Carpeles, 89 Wis. 239 (61 N. W. Rep. 836).

Sec. 455. Parol leases. Applying Ala. Code, § 1732, subd. 1, which prohibits parol contracts "not to be performed within one year from the making thereof," it is held that a lease of land for a year, to commence in the future, is invalid and will not support an action to recover rent, although payable within the year. Bain v. McDonald, 111 Ala. 269 (20 So. Rep. 77). Where there has been part performance of a parol lease within the statute of frauds a court may compel its performance. Hammond v. Barton, 93 Wis. 183 (67 N. W. Rep. 412). Taking possession and paying rent under a parol lease within the statute of frauds is sufficient part performance to take it out from under the operation of the statute. A. G. Rhodes Furniture Co. v. Weedon, 108 Ala. 252 (19 So. Rep. 318). Where a lessor repudiates an oral lease which is within the statute of frauds the lessee cannot recover of him damages for expenditures which he has made in reliance upon such lease but which were not required by it. Leavitt v. Stern, 159 Ill. 526 (42 N. E. Rep. 869).

Sec. 456. Construction of leases. A provision avoid. ing the lease in case of default by the lessee inures to the benefit of the lessor, and is not effective in behalf of the lessee unless the lessor so elects. Edmonds v. Mounsey, 15 Ind. App. 399 (44 N. E. Rep. 196). Where the lease provides that upon its expiration the lessee shall deliver up the premises to the lessor in as good condition as when the lessee entered upon them "reasonable use" and wear thereof, and damages by the elements. excepted, evidence as to the condition, situation, and adaptation of land for a particular use, the declarations of the parties as to the use to which the land was to be put, and that it had no rental value for any other purpose, is admissible, to show the intent of the parties in the use of the phrase "reasonable use." Bartels v. Brain, 13 Utah, 162 (44 Pac. Rep. 715). The rights of a lessor to the use of an irrigation ditch owned and maintained in common by him and others pass to his lessee, but the covenant of such a lessor to defend the lessee in the peaceful and quiet possession of the premises does not bind him to maintain the ditch. Stevens v. Wadleigh, description in a lease as known or designated as 264 J. Avenue,' and all the buildings, outhouses and premises of said place, with the appurtenances," will not include buildings and outhouses situated on a lot adjoining No. 264, belonging to the lessor, in the absence of a mutual understanding to that effect, although previous occupants of the leased premises had used such buildings in connection with lot No. 264. Morris v. Kettle,

Ariz. (46 Pac. Rep. 70). A "the house and premises *

N. J. Eq. (34 Atl. Rep. 376). In a lease which reserves an annual rental of $2,700, and contains a covenant of the lessee to pay the said rental in equal quarterly payments of $625 each, the erroneous division of the reserved rent does not have the effect to reduce the rent to $2,500. Taken as a whole, a lease thus written satisfactorily shows that the rent reserved was $2,700, and that its erroneous subdivision into quarters was merely a mathematical mistake. Smith v. Blake, 88 Me. 241 (33 Atl. Rep. 992). Construction of a particular lease of a market stall in the city of New Orleans. Economides v. Hinricks, 48 La. 370 (19 So. Rep. 124). Construction of a particular lease in which a wharf was held to pass as an

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