When this case was before this court on a former trial, it was laid down as a general and well settled rule, “ that an eviction, in fact or in effect, which destroys and renders the premises useless, may be set up in defense against a recovery of rent; and this extends to such acts of disturbance as effect the same thing.” The first instruction asked by plaintiff was based upon the supposition that even if it was true that an eviction of a portion of the premises, and such other acts had been done by plaintiff as had the effect of an eviction of the whole, nevertheless if defendant was in the possession of the demised premises when the rent became due, he would be liable for its payment. In this case it appears from the evidence that the rent was due quarterly, and payable in advance. The demand was made, and this proceeding instituted for the recovery of a quarter’s advance rent, which was payable by the terms of the lease, on the first of July, 1853, and this proceeding was instituted within that month. The plaintiff received about half of the rent for this quarter, of Caldwell, who succeeded the defendant in the possession of the premises, and there can be no question that defendant was entitled to a deduction to the extent of this payment. Plaintiff could have no right to collect the same rent from defendant, and also from Caldwell. This instruction was calculated to mislead the jury, and was therefore properly refused.
An eviction may be occasioned either by the landlord himself, by entering without title, or by a third person under paramount title. When the eviction is of the whole of the demised premises, under paramount title, such eviction has the effect to discharge the rent. But an eviction of only a part of the premises, if by a stranger, the rent will be apportioned, but if by the landlord himself and the tenant is kept out of possession of that part, the whole rent will be discharged. 3 Kent, 464 ; 1 Saund. R. 204, note 2; 1 Ld. Ray. 370. The evidence/ shows that plaintiff sold a portion of the demised premises to the railroad company, and by his permission, agreement and consent, the road entered into the possession of that portion before this rent became due by the terms of the lease, and they deprived defendant of its use and occupancy. Now if this were true, the plaintiff was not entitled to recover, as his first instruction asserted. The modification to his second instruction presented the law as it was applicable to the evidence, and it embraced the legal proposition contained in the eleventh, and presented it as clearly and fully as amended in the eleventh, and no error is perceived in substituting that which was given for the second, nor in refusing the eleventh.
There was no evidence that the assessment of damages was ever approved by the Circuit Court, and if this had been done, that would only operate upon the right of Halligan, and Wade would still have a right to compensation for the injury to his right of possession under the lease. And until his damages were assessed and paid, the railroad could not enter upon the premises, nor could the landlord put them into possession without evicting his tenant of that portion of the demised premises. Nor would the consent and authority of the landlord that the road might, enter into the premises, justify them in taking possession, and if it was taken in consequence of the landlord’s authority and consent, he would be responsible for the act, and it would operate as an eviction of that portion. The arrangement between the road and plaintiff only passed the title of plaintiff, subject' to the lease to defendant, and until the right of defendant was extinguished, or he consented to the entry it was unwarranted by the law.
If plaintiff by depriving defendant of this portion of the demised premises, and by leasing the reserved portions, for pui’poses, that rendered them useless for the business for which defendant rented them, he would be thereby discharged from paying rent. And the evidence tended strongly to show that such was the case, and this was a fact for the finding of a jury, and justified the giving the instructions announcing that principle. It was insisted on the argument that a distinction existed between leasing the reserved portions of the premises for lawful or unlawful purposes. And that as these leases were made for the purposes of carrying on lawful pursuits, the law gave defendant no right to complain. But it is believed that such a distinction does not exist. Suppose in this case the landlord had converted the rooms under this hotel into pig stys and horse and cattle stables, can any one doubt that such an act would have been equally destructive to the business of the tenant as would almost any species of unlawful business that could be tolerated in any city, and yet they would be appropriated to lawful purposes. And it may be and doubtless was equally destructive to the business of keeping a hotel, that those rooms were appropriated to the keeping of a low, noisy, and disorderly liquor saloon, and a tin shop. We think the evidence justified the jury in finding that there was such an eviction, or what had the effect of such an eviction as released the defendant from the payment of this rent. JSTo objection is perceived either to the giving, refusing, or modifying the instructions asked by either party, and from a careful examination of the record we think the evidence justified the verdict.
The judgment of the court below must be affirmed.
Judgment affirmed.