No. 7. - Burdett v. Withers, 7 Adol. & El. 136.

a covenant to repair, it is not meant that the old building is to be restored in a renewed form at the end of the terin, or of greater value than it was at the commencement of the term. What the natural operation of time flowing on effects, and all that the elements bring about in diminishing the value, constitute a loss, which, so far as it results from time and nature, falls upon the landlord. But the tenant is to take care that the premises do not suffer more than the operation of time and nature would effect; he is bound by seasonable applications of labour to keep the house as nearly as possible in the same condition as when it was demised. If it appears that he has made these applications, and laid out money from time to time upon the premises, it would not perhaps be fair to judge him very rigorously by the reports of a surveyor, who is sent upon the premises for the very purpose of finding fault.

Still there is only a certain latitude to be allowed in these cases; and the jury are to say whether or not the lessees [* 337] * have, in the present instance, done what was reasonably to be expected of them, looking to the age of the premises, on the one hand, and to the words of the covenant which they have chosen to enter into, on the other.

The jury said, that, under all the circumstances, they thought the covenants had not been broken; and they found a

Verdict for the defendants.

Talfourd, Serjt., and Butt for the plaintiffs.

Wilde, Serjt., Thesiger, and Hoggins for the defendants.

A motion was afterwards made before the LORD CHANCELLOR to set aside the verdict, on the ground that it was against the evidence; but no objection was made to the manner in which the LORD CHIEF JUSTICE had left the case to the jury.

Burdett v. Withers.

7 Adolphus & Ellis, 136-138 (s. c. 2 N. & P. 122; W. W. & D. 444; 1 Jur. 514).

Agreement to Repair. - Extent of Liability.

[136] Assumpsit on a promise, by a tenant, to keep premises in good and sufficient repair; and breach by not so keeping. Plea, payment of £5

into Court, and no further damage.

On an issue taken upon such plea, the defendant is entitled to prove at the trial what the state of the premises was at the time of the demise.

Assumpsit. The declaration stated that heretofore, to wit, 29th September, 1827, defendant became tenant to plaintiff of certain farms, upon the terms, among others, that defendant should, during the tenancy, keep all the premises in good and sufficient repair at his own expense; and, in consideration thereof, defendant promised plaintiff that he would, during the continuance of the tenancy, keep all the premises, &c. (as before): that defendant became tenant, &c. : *breach, that he did not [*137] keep, &c., and at the end of the term yielded the premises up in bad repair. Plea, that the plaintiff ought not further, &c., because the defendant brings into court £5, and plaintiff has not sustained damages to a greater amount. Replication, that the plaintiff has sustained damages to a greater amount. Issue thereon. On the trial before ALDERSON, B., at the Berkshire Spring assizes, 1836, the plaintiff produced evidence to show the bad state of the premises at the time of the defendant's quitting. The defendant's counsel cross-examined as to the state of the premises at the time of the defendant's coming into possession: but the learned Judge, being of opinion that this was not relevant to the issue, stopped the cross-examination, and refused to admit evidence for the defendant on this point; and he said, in his charge to the jury, that they must estimate the damages on this issue at the sum which it would cost to put the premises into tenantable repair, without reference to the state in which the defendant found them. Verdict for the plaintiff; damages £162 10s. In Easter term, 1836, Cooper obtained a rule nisi for a new trial, citing Harris v. Jones, 1 M. & Rob. 173, and Gutteridge v. Munyard, 1 M. & Rob. 334 (p. 474, ante).

Ludlow, Serjt., now showed cause. By the form of the issue the liability is admitted; so that, if the damages exceed £5 by any sum, the Court can only reduce the damages. The cases cited on moving for the rule were discussed in Stanley v. Towgood, 3 Bing. N. C. 4, where, in an action on a covenant to keep and leave in good * and tenantable repair, it was held [* 138] that, although a jury should be allowed to take into consideration whether the house was new or old, the state of repair at the time of the demise was not to be considered. Here the tenant purchased his term by agreeing to keep in good repair: after that, he is not to be allowed to show that the state of the premises was bad, he having made his contract.

Cooper, contra, was stopped by the Court.

Lord DENMAN, C. J. The verdict might have been for the defendant if the evidence had been submitted to the jury. It is very material, with a view both to the event of the suit and to the amount of damages, to show what the previous state of the premises was. We cannot reduce the damages; for we have no means of forming an estimate.

LITTLEDALE, PATTESON, and WILLIAMS, JJ., concurred.

Lister v. Lane & Nesham.

Rule absolute.

1893, 2 Q. B. 212–218 (s. c. 62 L. J. Q. B. 583; 69 L. T. 174; 41 W. R. 626).

Covenant to Keep and Leave in Repair. — Inherent Defect in Premises. [212] The plaintiffs granted to the defendants a lease of a house in Lambeth, containing a covenant by the lessees that they would "when and where and as often as occasion shall require, well, sufficiently, and substantially, repair, uphold, sustain, maintain, amend, and keep" the demised premises, and the same "so well and substantially repaired, upheld, sustained, maintained, amended, and kept," at the end of the term yield up to the lessors. Before the end of the term one of the walls of the house was bulging out, and after the end of the term the house was condemned by the district surveyor as a danger ous structure and was pulled down. The plaintiffs sought to recover from the defendants the cost of rebuilding the house. The evidence showed that the foundation of the house was a timber platform, which rested on a boggy or muddy soil. The bulging of the wall was caused by the rotting of the timber. The house was at least 100 years old, and possibly much older. The solid gravel was seventeen feet below the surface of the mud. There was evidence that the wall might have been repaired during the term by means of underpinning:

Held, that the defect having been caused by the natural operation of time and the elements upon a house the original construction of which was faulty, the defendants were not under their covenant liable to make it good.

Appeal by the plaintiffs against the judgment of GRANTHAM J., at the trial of the action, for the defendant Nesham.

The action was by lessors against their lessees, the defendants Lane & Nesham, to recover damages for alleged breach of a covenant contained in the lease to repair the demised premises. The defendant Lane died after he had delivered a defence, and the action proceeded against the defendant Nesham alone.

The lease was dated November 22, 1883, and by it the plaintiffs demised to the defendants Lane & Nesham a wharf at Lambeth,

No. 8. Lister v. Lane and Nesham, 1893, 2 Q. B. 212, 213.

.

known as the Shot Tower Wharf, and also the building known as the Shot Tower and a warehouse, and also a messuage (called the Cottage), stables, sheds, &c., adjoining, to hold unto Lane & Nesham, their executors, administrators, and assigns, for the term of seven years from September 29, 1883, at the yearly rent of £800. There was a joint and several covenant by the lessees with lessors, that the lessees would at their own costs and charges *" when and where, and as often as occasion shall [* 213] require, well, sufficiently, and substantially repair, uphold, sustain, maintain, glaze, pave, . . . amend, and keep all and singular the said wharf, Shot Tower, warehouse, messuage, buildings, and premises, and all the walls, pavements, &c., to the said premises belonging or in anywise appertaining, . . and the said wharf, Shot Tower, warehouse, messuage, buildings, and premises, . . . so well and substantially repaired, upheld, supported, sustained, maintained, glazed, . . . amended, and kept, at the end or other sooner determination of the said term hereby granted, will peaceably and quietly leave, surrender, and yield up" unto the lessors in such good and substantial state and condition as the lessors " may be bound to deliver up the same premises to the superior landlord or landlords thereof at the expiration of the lease under which they now hold the premises." The defendants entered into possession of the demised premises under this lease, and they remained in possession until the end of the term in September, 1890. In August, 1890, the plaintiffs delivered to the defendants a notice, signed by the plaintiff's surveyor, to execute certain repairs to the premises according to particulars delivered with the notice. The plaintiffs by their statement of claim alleged that " the defendants did not, pursuant to the said notice, do the said repairs. In consequence of the said breaches of covenant by the defendants part of the said demised buildings became dangerous and had to be pulled down, and the plaintiffs suffered great loss and damage to their reversion.

The plaintiffs claimed £700, the principal item in which was a sum of £569, for "rebuilding dwelling-house," meaning the Cottage.

The defendant Nesham by his defence said that the notice to repair" required work to be done which the defendant was not bound to do by the terms of the covenant to repair in the said lease contained. The premises were repaired and were delivered

No. 8. Lister v. Lane and Nesham, 1893, 2 Q. B. 213, 214.

up in repair in accordance with the said covenant. After the determination of the said lease part of the demised buildings were pulled down, but not by order of the defendants, nor in consequence of their act or default."

[* 214]

witness prepared

The repairs were He said that the

*At the trial Mr. Douglas, the plaintiff's surveyor, was examined. He said that in 1887 the premises were in bad condition. He called the attention of the defendant Nesham to the want of repair. In August, 1890, he again inspected the premises. The south wall of the Cottage was bulged, and the floors were five inches out of level. The the notice which was served in August, 1890. commenced, and all was done but the wall. wall could have been rebuilt without any difficulty in 1887, and if the pointing of the wall had been done and the wall had been underpinned, no difficulty would have arisen. The wall had pitched more towards the east in 1890. In August, 1890, he gave notice to pull down or repair the wall. It might be that it would have involved the pulling down of the house. He estimated the cost of putting right the Cottage at £513. From what he had seen since he did not believe it was possible to have pulled down the wall without pulling down the house.

Mr. Truscott, a builder, stated that he was employed by the defendants to do work to the premises, and from 1889 to June, 1891, he was continuously doing something. He put up scaffolding to point the wall in September, 1891, intending to pull down part of the wall and rebuild. He gave notice to the district surveyor, who examined the house and condemned it as a dangerous structure. "In the foundations of the building I found a mud cill. It was used instead of concrete foundation, and it had rotted. I think it would cost £530 to put the Cottage back." A“ mud cill" was explained as meaning a timber platform, which rested on a boggy soil and on which the Cottage was built. In crossexamination the witness said: "The Cottage was a very old building, indeed, at least 100 years. I cannot say if it was 200 years old. No one knew of the foundation. It could have been underpinned." Mr. Hewitt, the district surveyor, deposed that in November, 1891, the Cottage was in a dangerous condition. He came to the conclusion that it was a bad foundation. "I think it had been falling over ever since it was built. I think the cause of bulging was the sinking of the foundation. I think the decay