Majority
p. 331BENJAMIN POTTER vs. PETER TRUITT.
Headnote
In assumpsit for use and occupation, the defendant may show that he was deprived of I the beneficial use of the premises by the neglect of the landlord to repair according I to contract/Assumpsit for use and occupation of a carriage shop, sheds, &c.
The plaintiff proved the occupation of the premises by the defend-lt at a certain rent per year.
The defendant offered evidence that it was a part of the contract at the shed should be repaired so as carriages might be kept safely
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under it; and that in consequence of want of repair, he had been compelled to remove his carriages to another place. (Woodfall 353; 1 Esp. JV. P. 59; 7 Doiol. & Ry. 117; Ros. Ev. 147; 2 Br. & Bing. 680; Ry. & M. 268, S. C.; Com. Land. & Ten. 450-3.)
The plaintiff objected, that this could not be set off or defalked against the rent, but must form the subject of a separate action for damages. (2 Saund. PI. & Ev. 859.)
Huffington and Frame, for plaintiff.
Bates and Clayton, for defendant.
We consider this matter on the principles which govern the action of indebitatus assumpsit generally. The plaintiff recovers what in equity and good conscience he is entitled to and no more. Our act of assembly, like the British statute, enables the plaintiff to show the sum agreed on for rent as the measure of damages, but the tenant may be let in to show that he had no beneficial enjoyment of the premises, through the default of the landlord. (Edwards vs. Etherington, Ry. & Moody 268.) So in this case we will allow the defendant to prove the landlord’s agreement to repair the , shed; and that the defendant was deprived of the use of it for want of such repair.