I dissent from Divisions II and III of the majority opinion. The plaintiff in his petition prayed for "such reduction in payment of rents as the court may determine will compensate the plaintiff for the failure to make such improvement." The trial court reduced the rent $20 a month, extending on into the future as long as plaintiff stays on the property under the lease and defendant fails to make the improvement. This provision in the trial court's decree receives the approval of the majority of this court.
The general rule is that a landlord's agreement in a lease, to repair or improve, is independent of the tenant's agreement to pay rent, unless the covenant to repair or improve is made a condition precedent to the covenant to pay rent. 52 C.J.S., Landlord and Tenant, section 487; Piper v. Fletcher, 115 Iowa 263, 266, 88 N.W. 380, 381; Stone v. Sullivan, 300 Mass. 450,15 N.E.2d 476, 116 A.L.R. 1223; Richard Paul, Inc. v. Union Improvement Co., 59 F. Supp. 252; Frazier v. Riley, 215 Ala. 517,111 So. 10; Magee v. Indiana Business College, 89 Ind. App. 640,166 N.E. 607; Banister Real Estate Co. v. Edwards, Mo. App., 282 S.W. 138; Mitchell v. Weiss, Tex. Civ. App., 26 S.W.2d 699; Community Theaters, Inc. v. Weilbacher, Tex. Civ. App., 57 S.W.2d 941.
In Piper v. Fletcher, supra, which is cited in the majority opinion, we held:
"The covenant to pay rent and the covenant to repair are independent, however; and failure of the landlord to repair does not work a forfeiture of the rent, where the tenant remains in the possession and occupancy of the premises."
Surely the Piper case is no authority for the holding in the majority opinion. It is clear that in this case the covenant *Page 677 to improve is not made a condition precedent to the covenant to pay rent. The majority would concede this. The majority opinion holds in effect that plaintiff can stay in occupancy and he is absolved from paying a portion of the rent reserved, because the defendant breached his agreement to improve. This is not treating the two covenants as independent. Clearly it is making the covenant to pay rent entirely dependent on the covenant to improve.
There may have been some basis for the award of $300 for past damages, under the pleadings in this case where the defendant-landlord counterclaimed for his unpaid rent. All authorities agree that a tenant can recoup his damages for breach of a landlord's agreement to improve, in a suit against him for rent. In so far as the defendant claimed a judgment for rent, plaintiff could offset his claim for damages for breach of the agreement to improve. Piper v. Fletcher, supra. But the continuing failure of the landlord to improve does not work any forfeiture of the rent payable under the lease, where the tenant remains in possession. The plaintiff did not pay the rent. The placing of a portion of the rent in escrow was meaningless. This court in decreeing that the tenant can remain in occupancy without paying the full rent because the landlord has breached his covenant to improve is today sanctioning that which we would have condemned in the days of Piper v. Fletcher, supra.
Because of the rent claim in the pleading I would allow the claim for damages for $300 but order forfeiture unless the balance of $60 of the back rent was paid immediately. I would reverse that portion of the trial court's decree that decreased plaintiff's future rent because of damages plaintiff might sustain by reason of defendant's continuing breach of the contract to improve. Plaintiff has an adequate remedy in a suit against defendant for the breach of this independent covenant in the lease.
I am authorized to state that Justice HAYS joins in this dissent. *Page 678