Downing v. De Klyn , 1 E.D. Smith 563 ( 1852 )

By the Court. Woodruff, J.

I think that in this case a new trial should be granted. The action is brought to recover the consideration agreed to be paid by the defendant to the plaintiff, for quitting and surrendering to the defendant a dwelling house, held by the plaintiff, under a lease from the defendant; and the defendant on the trial offered evidence, that although the plaintiff removed himself and family from the building; he carried away with him the doors, windows and floors of the house.

This testimony, I think, should have been received. Removing his person and his goods from the premises, is not all that the plaintiff’s agreement fairly imported. He was bound to give to the defendant the possession of the house, substantially in the condition in which it then was.

This is the only reasonable interpretation of the contract, and is unquestionably according to the intention of the parties, as inferable from the agreement itself.

The propriety of this view becomes quite obvious, if we suppose that a landlord agrees to let a dwelling house to a tenant, and to deliver the possession of the premises on the 1st day of May, and the tenant agrees to hire, occupy, and pay rent. Could it be doubted, if before the first day of May, the landlord removed the doors, windows and floors, that the tenant would be excused from entering into the occupation of the dismantled building, and paying rent therefor ? I think not. Nor in my opinion was the defendant here- any more bound by the agreement to pay $250 to the plaintiff for quitting and surrendering the premises in question, if the plaintiff had been guilty of the spoliation proposed to be proved.

It appeared by the evidence that the inducement to the contract on the part of the defendant was a contemplated sale of the premises, and this, according to some of the testimony, the plaintiff knew. The destruction of the building might, we can readily perceive, have defeated the whole purpose of the defendant in making the contract. x

Whether the evidence ought to have been received as a ground for recoupment, or as showing that in substance and effect the plaintiff did not perform his contract, I think it was an error to reject it altogether, and that a new trial ought to be granted.