(after stating the facts). The appellant contends that he was entitled to an instruction embodying the principle that, in event the appellees failed to comply with their covenant to keep the building in habitable repair, then the appellant could not be compelled to comply with his covenant to pay rent. In other words, it is urged that if the appellees first committed a breach of the contract of lease then appellant had the right to cancel and surrender the lease, and in such event would not be liable for the rents of the building. He relies upon the principles announced by this court in the case of Berman v. Shelby, 93 Ark. 472, to support this contention. But we do not think that the doctrine set out in that case is applicable to the facts in this case. In that case, upon a breach of the covenants in the contract of lease on the part of the lessor, the lessee vacated the property and surrendered the actual possession thereof. Thereupon the lessor took actual possession of the property and leased it to other parties. In the case at bar the appellant, according to the uncontroverted testimony, did not vacate the building, but continued to occupy it and hold the actual possession thereof for iall the months for which recovery was had. He only tendered back the keys of the building and offered to surrender the possession thereof. A mere agreement for a surrender of the leased property, where not actually executed, does not operate as a surrender. There can be no such surrender unless, in addition to the offer or tender of surrender, there is an abandonment of the property by the lessee and a resumption of the possession by the lessor; or such a vacation and relinquishment of the property by the lessee as will justify a resumption of the actual possession by the lessor. Where the lessee continues to occupy the premises and hold the possession, there is no surrender thereof, and the mere tender of the keys or the offer to turn over the possession will not operate as such a surrender. Such a tender or offer to surrender is like a tender of payment without actual payment, or like an accord without satisfaction; in all of which cases there is no bar to recovery. 24 Cyc. 1163-1372; Fish v. Thompson, 129 Mich. 313. As long as the lessee remains in possession, he is not relieved of his liability to pay rent; he is entitled, under such circumstances, only to a claim for damages for a breach of some covenant in the lease on the" part of the lessor which he may recoup against a recovery of the rents. Jones on Landlord & Tenant, § 673.
There has been a diversity of opinion in the courts of the various States as to the measure of the damages to which the lessee is entitled when the lessor has failed to comply with his covenant to repair. In some courts it has been held that he may recover all damages which may result from such breach; in others, that the measure of the damages is the diminution in the rental value of the premises by reason of such breach. In this court it has been held that the damages which are recoverable in such and similar cases should be compensatory only; that is, such damages as result directly from the breach, and which would make good the actual loss caused thereby. A party injured by a breach of contract must make reasonable effort to prevent or reduce the damages. Walworth v. Pool, 9 Ark. 394. And if, under the circumstances of the case, he can, by the use of reasonable exertion or reasonable expense, arrest the loss caused by such breach, then the measure of damages which he should recover will be the amount of such expense.
In Collins v. Karatopsky, 36 Ark. 31, it was held that damages sustained by a lessee in the death of a member of his family from the failure of the lessor to repair "were too remote and could not be recouped against a demand for the rent. In the case of St. Louis, I. M. & S. Ry. Co. v. Sanders, 91 Ark. 153, it was held that the measure of damages for a breach of a contract to build or repair a levee was not the damages to the crops and land resulting from an overflow caused by said breach, but that the true measure of the damages in such case was the cost of building or repairing the levee. In Varner v. Rice, 39 Ark. 344, it was held that in an action for rent the tenant may recoup, as damages for the landlord’s breach of covenant to repair, the amount it would have cost the tenant to make the repairs. See 2 Wood on Landlord & Tenant, p. 897, § 400; Jones on Landlord & Tenant, § 592; Sparks v. Bassett, 49 N. Y. Super. Ct. 270; Green v. Bell, 3 Mo. App. 291.
Where there has been a breach of an agreement on the part of the landlord to repair, the general rule for the measure of the damages growing out of such breach is that, where the repairs to be made are extensive, and where the cost thereof would be excessively large and expensive in comparison with the amount of the rent, thé diminution in the rental value of the property by reason of said breach or the difference between the rental value of said property without such repairs and the rental value of the property with such repairs would be the measure of the damages recoverable. But where the character of the repairs are not extensive, and are not thus costly and expensive in comparison with the rent, the measure of the damages caused by a breach to make such repairs would be the cost thereof. Miller v. Sullivan, 15 Am. & Eng. Ann. Cases, 561, and note thereto.
It is incumbent upon the party claiming the damages growing out of such a breach to prove the actual cost of making such repairs, and by such evidence to show that the expense of making same would not be slight but large and excessive in comparison with the amount of the rent. In this case the appellant has introduced no testimony as to the actual cost of making the repairs which he contends the landlord agreed to make. On the other hand, the testimony introduced by appellee as to the actual cost of making such repairs shows that the expenses of making same would have been small. Under the circumstances of this case the measure of the damages for the breach by appellees of their agreement to repair was the cost of making the repairs.
In the case at bar the appellant did not vacate the leased premises upon the alleged breach of the contract committed by appellees, but retained possession thereof. Under the circumstances of.this case he bad a right to make the repairs which appellees had failed under their covenant to make and to recover the cost thereof from appellees, and the value of the use of the premises during the time he may have been deprived thereof while making the repairs; and, in event appellant did not make the repairs, then he had the right to recoup, as damages against a recovery of the rent, the cost of such repairs. We are of opinion, therefore, that the -court was correct in all its rulings upon the instructions.
At the trial of the case the court refused to permit the introduction of the above letters that passed between the parties prior to the signing of the lease. It is urged that these letters became a part of the written contract because the lease was signed and -delivered by appellant only on condition that the agreements made by appellees in the letter of December 22 to make certain repairs should be a part of the written contract. But we do not think that the exclusion of said letters was prejudicial. In the contract of lease the appellees had covenanted to keep -the -building in habitable repair, and this, we think, covered every promise of repair -made by appellees in said letter. The appellant introduced testimony tending to prove that appellees had failed to make all such repairs, and the court instructed the jury that the appellant was entitled to recover as damages the -cost -of all these repairs. This was the full measure of his damages; and the appellant wias entitled under the undisputed evidence to no other right or remedy by reason of the breach by appellees to make any repairs mentioned in said letter or in the written lease. We do not think, therefore, that the exclusion of said letters constituted any prejudicial error. -
At the time that the pleadings were orally amended during the progress of the trial some doubt was expressed by counsel in the presence of the jury as to whether or not the rent for the month of November, 1909, could be sued for. This doubt was expressed for the reason that it was thought that the rent for November was not at the time of said amendment payable under the contract. The amendment was not made in writing. The jury specifically named the rents for each of the other months in their verdict, but made no mention of the rent for November. We are of opinion that under these circumstances the rent for the month of November was not included in the amendment, and therefore was not put in issue in the case, and was not sued for. The judgment in this case cannot therefore be a bar to any suit hereafter seeking to recover the rent for the month of November, 1909.
Finding no prejudicial error in the trial of this case, the judgment is affirmed.