expended in necessary repairs; the actual amount expended for repairs, where there is an oral stipulation for repairs and deduction there for from the rent, made subsequent to the lease;" and for damages resulting from the lessor's making repairs which the lease did not require him to make.10 But a counterclaim for breach of the lessor's covenant to repair is limited to the claim in the action for rent." If the plaintiffs, in an action for rent, are bound by a contract of guaranty in the same capacity in which they executed the lease, damages, legal costs and expenses will constitute a counterclaim in such action, when they are such as are contemplated by and are within the scope and intent of the guaranty, otherwise not, even though such guaranty relates to other than the immediate parties to the lease.12 § 1887. Counterclaim-Repairs-Repairs accompanied by damages from breach of contract.-A breach of the covenants in the lease by the landlord to repair is not an excuse for the failure of the tenant to pay rent and upon this ground affords no defense in an action to recover possession of the demised premises, but if accompanied by damages flowing from the breach these damages are a proper subject of counterclaim. A counterclaim may be interposed in summary proceedings to recover possession of the demised premises but no affirmative money judgment can be awarded to either party. The damages should be off-set by way of counterclaim to the extent of the claim of the landlord, and if the damages are in excess of such claim the excess may still be recovered in another action.13 § 1888. Set-off-Recoupment and counterclaim-What will not be allowed-Generally. In an action for rent the 8 Myers v. Burns, 35 N. Y. 269. See Reno v. Mendenhall, 58 Ill. App. 87; Collins v. Morrison, 91 Wis. 324; 64 N. W. 1000; and examine Reiner v. Jones, 38 App. Div. (N. Y.) 441; 56 N. Y. Supp. 423. 'Jeffers v. Bantley, 47 Hun, 90; 14 N. Y. St. R. 648. 11 Brown v. Coleman, 55 Hun, 501; 30 N. Y. St. R. 347; 8 N. Y. Supp. 808. 12 Beekman v. Van Dolsen, 70 Hun, 288; 53 N. Y. St. R. 768; 85 Hun, 618. 13 Jefferson Real Est. Co. v. Hiller & Sons, 81 N. Y. Supp. 374, per 10 Mann v. Fuller, 63 Kan. 664; 66 Blanchard, J. Pac. 627. 15 lessee, who has abandoned the premises, cannot avail himself as against the rent of the value of chattels left upon the premises by him.14 Nor can fraud in the inception of a lease be set off or counterclaimed. Nor, where the lessee of a mine takes a new lease can he set off against royalties thereunder, royalties which were overpaid upon the basis of mineral actually mined under the original lease, but which were payable under a minimum royalty clause in said lease.16 Nor can a tenant, a portion of whose lands are taken for public use by a city, set off against rents thereafter due, the proportionate rents paid, under a claimed mistake of facts, for the portion so elected to be taken by the city, even though by statute the land so taken is discharged from the lease and the rent should be apportioned; for said tenant was charged with notice by reason of being a party to the proceeding." § 1889. Set-off-What will not be allowed.-There cannot be set off against rent damages consequent upon the lessor's breach of the contract to repair.18 Nor can a claim for unliquidated damages to be deducted from the principal of a ground rent estate be set off against the annual rent.1 And where a husband is in partnership with a tenant under an agreement for the payment of the rent from the partnership interest, a claim against him cannot be offset against rent due his wife. Nor can damages sustained on account of the lessor's breach of other covenants in the lease be set off against rent. And where the lessor at the time of his death was indebted to the tenant, such debt cannot be set off against rent accruing after such death, under a lease of a farm for years made with said lessor during life." Nor in summary proceedinge can there be a set off against rent of an overdue mort 14 Banks Agric. & T. Co. v. Masters, 69 Ill App. 573. 15 Kiernan v. Terry, 26 Ore. 494; 38 Pac. 671. 16 Dennison v. Haddock, 200 Pa. 426; 50 Atl. 197. 17 McCardell v. Miller (R. I. 1901), 46 Atl. 184, under Pub. St. c. 64, sec. 40. 18 Sickels v. Fort, 15 Wend. (N. Y.) 559. 19 Liebert v. Heitz, 21 Pa. Co. Ct. 179; 7 Pa. Dist. R. 429. 20 Alexander v. Meroney, 30 S. C. 335; 9 S. E. 266. 21 Tuttle v. Tompkins, 2 Wend. (N. Y.) 407. 22 Washington v. Castleman, 31 W. Va. 832; 8 S. E. 603. 23 People v. Walton, 2 Super. Ct. (N. Y.) 533. gage purchased by the lessee." Nor can repairs to a sidewalk upon the premises, which the tenant had stipulated to make with certain exceptions, be set off to a distress warrant for rent. Nor can damages consequent upon the retention of a part of the leased premises by the lessor be set off.* 27 § 1890. Recoupment-What will not be allowed.-In an action by the lessor for rent the lessee's damages from being prevented from moving his house from the leased premises cannot be recouped; or damages for breach of the lessor's covenant to repair; or damages consequent upon want of repair on the roof, in the absence of a special covenant to repair; or the detriment occasioned by the nonrepair where there is a contract to repair. 29 28 30 § 1891. Counterclaim-What will not be allowed.-There cannot be a counterclaim against rent for damages consequent upon a breach of covenant of quiet enjoyment, where such breach was under a statute authorizing the compulsory taking of the property." Nor, as against the estate of the lessee, can there be a counterclaim of a claim for rent assigned to one of the lessee's daughters by the lessor, said daughter having continued in occupation of the premises for the unexpired term; nor will a counterclaim be allowed for compensation to the lessee for sowing seed which he had stipulated to sow under the lease; nor in the absence of a stipulation therefor for damages occasioned by failure of the lessor to make repairs to the 24 Constant v. Barrett, 79 N. Y. St. R. 709; 35 N. Y. Supp. 1092; 14 Misc. 570. 32 20 Walker v. Gilbert, 2 Rob. (N. Y.) 214. 30 Dorwin v. Potter, 5 Den. (N. Y.) 25 Powers v. Cope (Ga.), 18 S. E. 306. 815. 31 Manchester, S. & L. R. Co. v. 26 Judd v. Fellows, 9 App. Div. (N. | Anderson (C.A.), [1898] 2 Ch. 394; 78 Y.) 203; 41 N. Y. Supp. 274. Law. T. Rep. 821; 67 L. J. Ch. N. S. 27 Keegan v. Kinnare, 123 Ill. 280; 568, aff'g 78 Law T. Rep. 251; Rail11 West. 582; 14 N. E. 14. 28 Thomson-Houston Elec. Co. v. Durant Land Imp. Co., 144 N. Y. 34; 63 N. Y. St. R. 8; 39 N. E. 7, rev'g 53 N. Y. St. R. 467; 23 N. Y. Supp. 900; 4 Misc. 207, which aff'd 22 N. Y. Supp. 1134; 2 Misc. 182. way Clauses Consol. Act, 895; 33 Tower v. Blessing, 55 App. Div. (N. Y.) 634; 67 N. Y. Supp. 124. 31 35 38 36 39 roof; nor, in summary proceedings, damages to the lessee's stock in trade consequent upon the lessor's failure to repair as stipulated; nor in such proceedings damages for conversion. by the lessor of the lessee's chattels ; nor for damages caused by a conversion of the lessee's property after termination of the lease; 37 nor for injury to the goods of a tenant in the basement caused by a leaky roof where there is no express contract that the lessor repair; nor, in the absence of an express contract so to do, the damages consequent upon the lessor's not connecting the cellar of a dwelling house with the sewer; nor for damages caused by an eviction, occasioned by neglect of the lessor to keep the premises in repair and the consequent creation of a nuisance, where there is no averment of the existence of a covenant of quiet enjoyment and a breach thereof; nor damages occasioned by an unlawful entry and wrongful acts committed in altering the premises; nor attorney's fees paid to secure the dismissal of an attachment in an action for rent; nor damages from putting up a "to let" bill after notice given of increase of rent, the tenant holding over; nor can the breach of the contract of lease by the tenant be availed of as a counterclaim to an action for the lessor's conversion of of crops." It has also been decided that an allegation by way of counterclaim of damages arising to the use and occupation of the premises, is insufficient where there is no allegation of a covenant by the landlord to repair the premises. 42 41 45 43 34 Hanley v. Banks, 6 Okla. 79; 51 | Civ. Proc. 121; 10 Misc. 120, rev'g 58 Pac. 664. N. Y. St. R. 17; 27 N. Y. Supp. 138; 6 Misc. 531. 35 Pearson v. Germond, 83 Hun, 88; 63 N. Y. St. R. 842; 31 N. Y. Supp. 358. Failure here was to repair greenhouses. 36 Burrell v. Do Sin, 64 N. Y. St. R. 612; 10 Misc. 745. 37 Ludlow v. McCarthy, 5 App. Div. (N. Y.) 517; 38 N. Y. Supp. 1075. 41 Faber v. Phillips, 56 N. Y. Supp. 1028; 26 Misc. 723. See Gowenlock v. Ferry, 11 Manitoba R. 257. 42 Marshall v. Harber (Iowa, 1902) 91 N. W. 774. 43 Thorp v. Philbin, 15 Daly (N. Y.) 155; 22 N. Y. St. R. 27; 3 N. Y. Supp. 939, aff'g 18 N. Y St. R. 1005; 2 N. 38 Kulm v. Sol. Heavenrich Co., 115 Y. Supp. 732. Wis. 447; 91 N. W. 994. "Adams v. Loomis, 28 N. Y. St. R. 39 Torreson v. Walla (N. D. 1902), 344; 8 N. Y. Supp. 17. 92 N. W. 834. 40 Romaine v. Brewster, 62 N. Y. St. R. 517; 30 N. Y. Supp. 948; 24| 45 Hudson v. Tarlton, 24 Misc. R. 770; 52 N. Y. Supp. 552. § 1892. Reconvention-What will not be allowed."-In an action for possession there cannot be set up in reconvention a claim for damages for the lessor's wrongful acts in seeking to obtain possession." 48 49 § 1893. Evidence-Decisions.-The entire damages claimed must be proven, or some evidence should be given as to the amount thereof, to justify a recovery. So in case no general, but only special damages are claimed by reason of preparations for occupancy, loss of business, and deprivation of location in the vicinity of the premises leased, and only a slight outlay is proven to have been incurred in said preparation for occupancy, evidence of general damages, as to the large excess of rental value over that stipulated for the term, is inadmissible, and a verdict will not be sustained for the lessee for an amount largely in excess of said expenditure as proven, where it also appears that the latter's testimony as to the fair rental value being twice that stipulated was not corroborated, while that of the lessor that the fair rental value was the contract price was supported by two other witnesses.50 And where there is a breach of the lessor's promise to dig a well, the lessee's testimony upon the question of damages, that he was obligated to obtain water from a distant neighbor, and that it was a certain amount, is insufficient.51 Again, the rent of furnished rooms is not recoverable merely upon evidence of the amount of the gross rentals of the same, without proof of the expenses necessary to rent them. And in an action for breach of a contract to properly heat the premises, it is harmless error to exclude evidence 52 40 As to the meaning of "reconven- | 30 Atl. 852, per Baldwin, J., citing tion," as used in Texas, see Pacific Burritt v. Belfy, 47 Conn. 323; Gen. Exp. Co. v. Malin, 132 U. S. 331; 10 Stat. sec. 1050. Super. Ct. 166; 33 L. Ed. 450. 47 Ward v. Stakelum, 47 La. Ann. 546; 18 So. 508; La. Rev. Stat. secs. 2155, 2156. "The claim for $21,000 damages, alleged to have been sustained by the proceedings of the plaintiff, we do not think can be grafted on a suit for possession of leased premises." Id., per Miller, J. 49 Smith v. Phillips, 16 Ky. L. Rep. 615; 29 S. W. 358; Baker v. Anglin, 74 Minn. 246; 77 N. W. 45; Riggs v. Gray (Tex. Civ. App. 1903), 72 S. W. 101. 50 Goldman v. Gainey, 67 App. Div. (N. Y.) 330; 73 N. Y. Supp. 738. 51 Ladner v. Balsley, 103 Iowa, 674; 72 N. W. 787. 52 Kohne v. White (Wash.), 40 48 Gulliver v. Fowler, 64 Conn. 556; Pac. 794. |