From the facts stated, it would seem probable that Rile)'-, the present plaintiff, might have maintained a defence to the original action of Hale against him, at least as to a part of the rent therein demanded, on the ground that Hale, the lessor, had accepted a surrender or renunciation of the lease. Talbot v. Whipple, 14 Allen, 177. Daniels v. Newton, 114 Mass. 530. Amory v. Kannoffsky, 117 Mass. 351. Deane v. Caldwell, 127 Mass. 242. But he did not interpose this defence in season to make it effectual, and, having been defaulted, judgment against him for one full year’s rent under the lease was taken by Hale ; and Riley’s subsequent efforts to avoid this judgment were unavailing. Hale thus insisted upon the validity of the lease for the purpose of enforcing the covenant for rent therein contained; but now he seeks to treat it as invalid, for the purpose of avoiding the implied covenant on his part for quiet enjoyment. This he cannot be allowed to do. He cannot treat the lease as valid for the purpose of securing one advantage, and then turn round and treat it as invalid for the purpose of securing a further advantage. Bradley v. Brigham, 149 Mass. 141, and cases there cited. Ormsby v. Dearborn, 116 Mass. 386.
It is now contended in behalf of Hale, that he had a right to relet the premises for the account of Riley, and hold Riley responsible for the loss in rent. It is a sufficient answer to this argument to say, that if he had such right he did not exercise it. He let the premises on his own account, and did not account to Riley for the rents received by him, but took judgment against Riley for a year’s rent without credit or deduction.
Having thus made a decisive election to treat the lease as existing during that period, he must now stand to the consequences of such election. If Riley was bound as tenant for the *246rent, Hale was bound as lessor on the implied covenant for quiet enjoyment; and Riley is not debarred from seeking damages for a breach of that covenant, by his failure to plead it in. defence of the former action. A defence by way of recoupment is a privilege, not a duty. Riley was at liberty to resort to a cross action. Hunt v. Brown, 146 Mass. 258, 255, 256. Fiske v. Steele, 152 Mass. 260.
Assuming, then, that the relation of landlord and tenant existed between the parties, Hale was liable on his implied covenant for quiet enjoyment if he intentionally put it out of his power to deliver possession of the premises to Riley without Riley’s consent. Berrington v. Casey, 78 Ill. 317. Upton v. Townend, 17 C. B. 30, 68, 71. Hall v. Burgess, 5 B. & C. 332. This was an act of the same nature as putting out a tenant who had taken possession.
The rule of damages as given was correct. If no rent had been paid, the measure of damages would have been the difference between the agreed rental and the actual value. But where a lessee has been excluded from possession, and nevertheless has been compelled to pay rent during the period of such exclusion, the amount so paid is to be added; otherwise his actual loss by reason of the breach of the implied covenant will not be made good. Taylor’s Land. & Ten. (8th ed.) § 317. The contention in behalf of the defendant, that the plaintiff is only entitled in any event to nominal damages, rests on the assumption that the plaintiff voluntarily remained out of possession, though aware that the defendant would claim rent. But that assumption is unfounded, and it was not included in any of the defendant’s requests for instructions.
For the purpose of proving the actual value of the term covered by his lease, the plaintiff put in evidence, without objection, the leases executed by the defendant to other tenants for the period from May 12, 1880, to April 30, 1881, and also from May 1, 1881, to April 30, 1882, showing the rents agreed to be paid for those periods ; and he was allowed to introduce under objection a lease made by Hale’s grantee to the same tenants for the period from May 1, 1882, to April 30, 1884, showing the rent agreed to be paid for that period. There was evidence, however, tending to show that the entire rent reserved in the *247last mentioned lease was not paid. The ground of objection taken at the trial to the last lease is not stated, but the only grounds of legal distinction between that and the other leases now urged are, that the defendant was not a party to it, that there was evidence tending to show that the entire rent reserved was not paid, and that it covered a period one year later than the term of the lease to the plaintiff, there being a gradual advance in the rents. The purpose being merely to show the rental value of the premises for the plaintiff’s term, the first ground of distinction was immaterial; the second did not affect the competency of the evidence, but was only a matter for comment to the jury ; and in respect to the third, it is now to be assumed that, as the lease was admitted merely for the purpose „of showing the rental value till April 30, 1883, proper instructions excluding from consideration the later period were given, if asked for. The rentals were admitted, no doubt, not as conclusive tests, but only as evidence of the value of the plaintiff’s term, and an objection resting on the ground that the last lease covered too long a period should be expressly stated at the trial, in order to be available by way of exception.
Exceptions overruled.