stipulated in the lease, is recoverable for breach of a contract to pay a specified price for the assignment of said lease.0 Again, where premises are leased at an annual rental payable in monthly installments, with a stipulation for re-entry and termination of the lease, and damages in a sum which would equal the difference between the rents reserved and the rents collected for the unexpired term, said amount to be paid monthly, and there is nonpayment of rent for a certain month, damages may be recovered for the deficiency, to be ascertained. as stipulated, until the time of commencement of the action, but a separate suit must be brought for deficiencies thereafter.61

§ 1882. Expenses-Costs and counsel fees-When recoverable.-Actual and necessary expenses are a factor in estimating damages, when incurred, within the contemplation of the parties, in proper acts of preparation for the occupancy of the leased premises, where there is a breach of the contract by the lessor in denying possession, etc.R Within this rule. would be included the reasonable value of the lessee's personal services, the cost of clerk hire, and their personal expenses incurred by the lessee of a hotel while waiting for possession. The rule would likewise cover the cost of fixtures estimated upon the basis of the difference between the price paid and that obtained at public auction. So the lessee may recover compensation for his loss, incurred upon the inducement of a parol agreement to execute a lease which the lessor fails to execute, and this will include the value of labor and money expended, without fraud, to obtain the benefits of the lease. Expenses are also recoverable for breach of an agreement to give a valid See Goldman v. Gainey, 67 App. Div. (N. Y.) 330; 73 N. Y. Supp. 738.

64

o Kingsley v. Siebrecht, 92 Me. 23; | sion. 42 Atl. 249.

61 McCready v. Lindenborn, 172 N. Y. 400; 65 N. E. 205, aff'g 63 App. Div. 106; 71 N. Y. Supp. 355.

62 Joseph Bernhard & Son v. Curtis, 75 Conn. 476; 54 Atl. 213; Adair v. Bogle, 20 Iowa, 238; Friedland v. Myers, 139 N. Y. 432; 54 N. Y. St. R. 697; 34 N. E. 1055, rev'g 47 N. Y. St. R. 52; 19 N. Y. Supp. 741. There was in this case the additional factor of assurance by the lessor of posses

63 Hull v. Horton, 79 Iowa, 352; 44 N. W. 569.

64 Friedland v. Myers, 139 N. Y. 432; 54 N. Y. St. R. 697; 34 S. E. 1055, rev'g 47 N. Y. St. R. 52; 19 N. Y. Supp. 741. See also Joseph Bernhard & Son v. Curtis, 75 Conn. 476; 54 Atl. 213.

65 Walters v. Transue, 17 Pa. Super. Ct. 94.

62

70

lease where the lessor knows that he has no title.66 And the amount of expenses attending the giving of a public entertainment may be recovered as a part of the damages for breach of an agreement to rent a hall for public exhibition. So costs and expenses are recoverable when reasonably incurred by the lessee under the rule of duty to lessen damages, and for the purpose of protection from loss. Again the expense of hauling water and driving stock to water, incurred within the limits of a reasonable time while seeking another place, may be recovered where there is a wrongful eviction from premises having an ample water supply. So costs and expenses will be allowed when occasioned to the lessee by the illegal acts of the lessor in causing the former's crops to be seized. The expense of removing one's business, consequent upon the premises being rendered so useless by acts of the landlord as to compel the tenant's removal is also recoverable." And where a breach of the covenant of quiet enjoyment is occasioned by an action. by the lessor, the costs and counsel fees incurred in defending the action are an element of damages in an action by the lessee against the lessor for a breach of such covenant. So in case of eviction, under such a covenant, the costs, and reasonable counsel fees, in defending against dower may be recovered. And expenses, and counsel fees in giving a bond and security to prevent summary expulsion, will be included in the damages occasioned by the lessor's maliciously suing out a summary process to dispossess a tenant." So where there is a breach by the lessor of its lease of a bootblacking privilege at a railroad station, the costs of the action by the lessee are recoverable."

§ 1883. Same subject continued-When not recoverable. -Expenses are not recoverable when they are not the necessary

66 Robinson v. Haman, 1 Ex. 850; 18 L. J. Ex. 202.

67 Behrens v. Miller, 2 City Ct. (N. Y.) 427.

71 Grosvenor Hotel Co. v. Hamilton (C. A.), [1894] 2 Q. B. 836.

7 Levitzky v. Canning, 33 Cal. 299. 73 McAlpin v. Woodruff, 11 Ohio

68 Joseph Bernhard & Son v. Curtis, St. 120. 75 Conn. 476; 54 Atl. 213.

74 Slater v. Kimbro (Ga.), 18 S. E.

69 Wilkinson v. Stanley (Tex. Civ. 296. App.), 43 S. W. 606.

70

75 Deluise v. Long Isl. R. Co., 65

Reynolds v. Howard, 113 Ga. | App. Div. (N. Y.) 487; 72 N. Y. Supp. 349; 38 S. E. 849.

988.

76

consequence of the lessor's breach and which could not have been reasonably contemplated as flowing from the contract, or which the lessor did not require to be incurred, and concerning which he had no knowledge. And the amount expended by the tenant for gas fixtures and shelving cannot be recovered against the lessor, where pending dispossess proceedings against a former occupant, which were unsuccessful, the plaintiff was permitted to occupy adjoining premises." Nor will expenses be allowed when they are incurred in procuring another store for the purpose of carrying on a special business in a particular locality. Nor are expenses recoverable which are unreasonable. And expenses are excluded when incurred in preparing for occupancy, after knowledge of the refusal of the tenant in possession to surrender, since such acts involve the factor of bad faith.80 Again, expenses incurred in carpet cleaning, preparatory to occupation will not be allowed the landlord, where there is a failure of the lessee to rent the premises.81

79

78

§ 1884. Set-off, recoupment and counterclaim -What allowed generally. Where an owner of a one-half interest in an estate, prior to a judgment to that effect, and in order to avoid being dispossessed, takes a lease from a receiver and pays him rent for the whole property, he is entitled to set-off against rent unquestionably due thereafter for the undivided half interest, one half the amount paid the receiver for rent for the entire property. And a debt due from the lessor to the lessee for work may be set-off against the rent by the surety of the lessee, even though there is no stipulation there for. The lessor may also offset against the defendant lessees counterclaim in an action for rent, claims within the purview of a code which permits any new matter, not inconsistent with the peti

82

76 Cohn v. Norton, 57 Conn. 480; 18 Atl. 595; 5 L. R. A. 572.

77 Engelsdorf v. Sire, 64 Hun (N. Y.), 209; 46 N. Y. St. R. 107; 18 N. | Y. Supp. 907.

78

Joseph Bernhard & Son v. Curtis, 75 Conn. 476; 54 Atl. 213. See Goldman v. Gainey, 67 App. Div. (N. Y.) 330; 73 N. Y. Supp. 738.

79 Cohn v. Norton, 57 Conn. 480; 18 Atl. 595; 5 L. R. A. 572.

80 Cohn v. Norton, 57 Conn. 480; 18 Atl. 595; 5 L. R. A. 572.

81 Bacon v. Combes, 65 N. Y. Supp. 510; 32 Misc. 704.

62 Grant v. Buckner, 172 U. S. 232; 19 Super. Ct. 163.

83 Nickols v. Jones, 166 Pa. 599; 31 Atl. 1329.

tion, to be set up which constitutes a defense to the matter alleged in the answer, and allowing any number of defenses, negative or affirmative, to be pleaded to a counterclaim.S Again, an amount previously collected by the receiver, who sues for rent, in excess of what he was entitled to collect, is available by way of compensation and satisfaction.

89

§ 1885. Recoupment-What allowed.-In an action by the lessor for rent the lessee may recoup damages occasioned by the lessor's breach of contract to repair. Also, the cost of repairs under a covenant that the lessor repair. And where the lessor fails to make the repairs stipulated, the increased rental paid in consideration thereof may be recouped against rent due. So repairs made by the tenant, which the lessor had stipulated to make, but did not, after notice given, may be recouped in an action on a note given for the rent, and damages for injuries sustained to a stock of goods from a leaky roof, which the lessor had represented to be in a good condition, may also be recouped in an action against the lessee for breach of covenants in the lease. Again, in an action for rent, the lessee may recoup the damages sustained by interference with the tenant's rights by another tenant, authorized by the latter's contract with the landlord; 91 also for breach of the implied covenant for quiet enjoyment; also damages occasioned by acts of the landlord though not amounting to an eviction; also, damages occasioned by annoyance, and being forced to abandon the premises, by reason of their having been previously let as a house of ill-fame, the lessee having no knowledge thereof; also, the damages sustained by a tenant's family from

91

84 Illsley v. Grayson, 105 Iowa, 685; 75 N. W. 518.

85 Grant v. Buckner, 49 La. Ann. 668; 21 So. 580.

86 Whitbeck v. Skinner, 7 Hill (N. Y.), 53.

87 Dorwin v. Potter, 5 Den. (N. Y.) 306.

92

93

90 Stubblefield v. Soule, 21 Ill. App. 154.

91 Morgan v. Smith, 3 Hun (N. Y.), 220.

92 New York v. Mabie, 13 N. Y. 151.

93 Rogers v. Otsrom, 35 Barb. (N. Y.) 523. But see contra Edgerton

88 Deuster v. Mittag, 105 Wis. 459; v. Page, 20 N. Y. 281. 81 N. W. 643.

94

Staples v. Anderson, 3 Rob. (N.

89 Cheuvront v. Bee, 44 W. Va. 103; Y.) 327. 28 S. E. 751.

pollution of a well from a cause of which the lessor knew, including resulting expenses for sickness, such as a fee of a physician, etc. And where the lessor sues for advances made there may be recouped the damages consequent upon the landlord's failure to comply with his agreement to furnish a certain quantity of land, and a certain quantity and quality of working animals. Again, the landlord may recoup for injury to the premises by the lessee in removing material parts of the building." So the lessor may recoup, against the lessee's action for work, his damages consequent upon the tenant's breach of contract under the lease.

99

§ 1886. Counterclaim-What allowed.-In an action by the lessor for rent there will be allowed as a counterclaim, a breach of the lessor's stipulation to make certain improvements; damages occasioned by the lessor's entering the premises, raising the building and injuring the roof so that the lessee's stock of goods is flooded; 100 money deposited with the landlord as security for the performance of the covenants of the lease and not intended as a forfeiture;' for injury to property converted by the lessor and applied on the rent claimed ;' for the lessor's breach of covenant to furnish steam power; for damages sustained, consequent upon a wrongful distress warrant, and also a claim arising to the lessee under a contract to clear the land demised;' damages occasioned by an eviction; 5 damages sustained by an eviction and the destruction of property then on the premises; for the loss of such part of the premises as are untenantable for want of repair; the amount

95 Maywood v. Logan, 78 Mich. 135; 43 N. W. 1052.

96 Horton v. Miller, 84 Ala. 537; 4 So. 370.

1 Bernstein v. Heinemann, 51 N. Y. Supp. 467; 23 Misc. 464.

2 Littman v. Coulter, 7 N.Y. Supp. 1. Hirsch v. Olmesdahl, 78 N. Y.

"7 Downing v. DeKlyn, 1 E. D. S. Supp. 832; 38 Misc. 757.

(N. Y.) 563.

98

Hurst v. Benson (Tex. Civ. App.

Spencer v. Dougherty, 23 Ill. 1901), 65 S. W. 76, under Rev. Stat. App. 399. arts. 750, 755.

Pioneer Press Co. v. Hutchinson, 63 Minn. 481; 65 N. W. 938. See Minn. Gen. Stat. 1894, sec. 5237.

Ludlow v. McCarthy, 5 App. Div. (N. Y.) 517; 38 N. Y. Supp. 1075. Rice v. Bruff, 87 Hun, 511; 68

100 Hanley v. Banks, 6 Okla. 79; 51 N. Y. St. R. 508; 34 N. Y. Supp. 501. Pac. 664. 7 Myers v. Burns, 35 N. Y. 269.