The contract made by Chapman with the defendant, to repair the warehouse, was broken by the former before he conveyed to the plaintiff. This contract was made in February or March, 1859, and while the defendant was in possession under a verbal lease from Chapman, which would expire on the 1st of. May thereafter, and by it the repairs were to be made immediately, so that the defendant could enjoy the benefit of them during the year commencing May 1, 1860. Chapman accordingly employed *194Pickett, the carpenter, to make the repairs, who commenced the work in March, 1859. Afterwards, and in the same month of March, and before he conveyed the premises to the plaintiff, but after he had agreed by parol to do so, he ordered Pickett to quit the work, Pickett accordingly quit the work, and during the same month told the defendant that Chapman had sold out, and that he was ordered to discontinue the work. There can be no doubt, from the ■evidence, that Chapman refused to make the repairs in consequence of his agreement to sell to the plaintiff. The repairs were never resumed or made, but were distinctly abandoned by Chapman. On the 26th of April, 1859, Chapman and wife conveyed the premises to the plaintiff.. Chapman’s agreement to repair being thus broken, it became a chose in action in the defendant’s favor, against Chapman, for which he could have maintained his action, after the 1st of May, 1859. On that day the plaintiff or his agent refused to recognize any liability to repair, and the defendant, with notice of such refusal, attorned to the plaintiff, and paid him the first three quarters’ rent promptly, as they became due. On the 1st day of May, 1860, the defendant was about to give his check for the last quarter’s rent, but remarked to the plaintiff that he might want a few days to get his grain out and ship it. Whereupon the plaintiff proposed to wait until the end of the term, and settle it then; to which the defendant readily and unconditionally assented.
It seems to me, under the facts found by the referee, that the plaintiff is not liable on Chapman’s contract to repair, for the reason that the contract was broken before the latter conveyed to the former, and Chapman’s liability for the breach was complete before the plaintiff had acquired any legal estate or claim to the premises, and did not therefore legally attach itself to the plaintiff as grantee of the fee, by the deed from Chapman.
But if any doubt exists, as to this proposition, there is another view which leaves no doubt on the subject. The *195plaintiff, on the 1st day of May, 1859, called on the defendant at the demised premises, and informed him that he had purchased the premises of Chapman, and desired to know if the defendant wanted them another year. The defendant replied that he did want them, and had rented them of Chapman for one year from May 1, 1859, and should not make any contract with the plaintiff to interfere with his contract with Chapman. That Chapman had agreed to repair, and if he did not, the defendant would hold him (Chapman) for damages. The plaintiff replied he should not repair, and knew nothing of such a contract. Here was a distinct repudiation hy the plaintiff of Chapman’s contract to repair, after which the defendant continued in possession for the whole of the ensuing year, attorning to the plaintiff hy the payment of rent as it became due, without objection, except the last quarter, and then agreed to pay that as soon as he could get his grain shipped, as before stated. This, it seems to me, is clear evidence, prima facie, at least, of a waiver by the defendant of any claim upon the plaintiff on Chapman’s agreement to repair.
[Monroe General Term, September 1, 1862.For the foregoing reasons, I think the judgment should be affirmed.
Judgment affirmed,
Johnson, J. C. Smith and Welles, Justices.]