I think there was no eviction proven upon the trial. The ■defendant agreed “to do all the repairs which may be required in and upon said premises at his own cost and expense.” The building was an old building when rented, and the defendant fitted it up in some respects for the purposes of his occupancy. Yery soon after he entered into possession the defendant placed goods of great weight within the building. By reason of this weight, and of the condition of -the building itself, the floors settled. In the following spring the roof and floors settled still more in consequence of a snow storm. The defendant then applied to the *164plaintiff to fix up the building. The plaintiff employed a carpenter and made the roof secure. To do this it was necessary to remove a strip of flooring about six feet wide and fifty feet long. The defendant requested the plaintiff to leave this strip of flooring-open until he had disposed of his refrigerators stored there. After the expiration of six months or thereabouts, the defendant requested the plaintiff to lay down such strip of flooring. The refusal to do this is the eviction found by the referee. The covenant in the lease covered this defect. The covenant was to do all repairs. The clause in the lease requiring the defendant to surrender in as good condition as reasonable use would permit, damages by the elements excepted, does not relieve defendant of the obligation to do the repairs in question. It was the defective building which permitted the injury. This was in part occasioned by the great weight which defendant placed in it. If the covenant to repair covered this repair to the roof and building, the case would not fall within the provision of chapter 345, Laws of 1860. It was not the design of that law to relieve a tenant from the performance of his covenants, even if the destruction was caused by a sudden cause. It was not a performance of a covenant to repair, to tax the strength of an old building to its utmost by the weight of goods placed in it, and when the floor settled and became dangerous by the additional weight of a fall of snow on the roof thereon, to avoid responsibility by averring the injury to have been caused by the elements. If the defendant was bound to repair, then the part performance of the work of restoration by plaintiff would not be an eviction. What he did he did by defendant’s consent. If he was not legally bound to repair his premises, to do so was without consideration. The strip of flooring taken up was not fit to go back. Upon the whole case, I think the judgment should be reversed, and a new trial granted at circuit, costs to abide event.
Gilbert, J., concurred.