This is a suit on three promissory rent notes, each for the sum of $80.00, and representing the total value of three months' rent for June, July, August, 1921, on the second-floor apartment of premises Bo. 8602 St. Charles Ave., property owned hy plaintiff herein.
The lease was a written lease, dated September 20, 1920, and running from the 1st of October, 1920, to the 30th of September, 1921. In a previous suit filed in the First City Court of Hew Orleans, Ho. 97,348 of the doohet of said court, the same issues of fact and of law arose upon suit for rent due for the month of Hay, 1921. In this latter suit there was judgment for plaintiff, and on appeal, under the dodfcet number of this court, 8876, the judgment of the lower court was affirmed. In the suit now under consideration there was judgment in the First City Court under record number 98,964, for the sum of $240.00, as prayed for, from which judgment defendant has appealed.
The only defense to plaintiff's petition is failure of consideration for the notes sued upon, defendant alleging that although he signed the lease and notj,¿ referred to, that by a subsequent verbal agreement he was allowed to vacate the second-floor apartment, and In lieu thereof, to move to the third-floor apartment, just above the one rented under written contract of lease. Defendant admits that he voluntarily removed, from the second-floor apartment which was under written lease, but claims that by verbal agreement with plaintiff, the latter was-to put the upper, or third-floor apartment, into proper repair, and was to give him a written lease under the same terma and conditions as those nominated in the written lease relating to the second-floor apartment; that plaintiff failed to make the neoessaxjr repairs, or to give him a written lease similar to that of the first contract of lease. Upon these facts, it is contended that the rent for the months sued upon was not due^ and owing, and that *374defendant .. n compelled to vacate *’ ■ . íi'rd-floor apartment on or about April 20, 1921.
It is not necessary to disouss the contradictory evidence found in the record as to the failure of the plaintiff to make the repairs Verbally agreed upon, nor is it necessary to do tore than to note the testimony of plaintiff to the effect that he made such repairs as were possible, up to the point where defendant, who had agreed to assist him ill making said repairs, failed to continue to give him such assistance.
She sole question for determination ia whether the old lease relating to the second-floor apartment was ever can-celled. Whatever the understanding between the parties might have been, and irrespective of what their conflicting testimony may be as set forth in the record, the actions of the parties are abundantly eloquent in revealing exactly what was intended, We find as a fact that the defendant removed from the lower apartment at his, defendant's request, that he, while in the third-floor apartment paid two of the rent notes relating to the s.econd-floor apartment, that he never, at any time, requested the plaintiff to return the old lease, or to cancel the old notes, hut, on the contrary, after finding that plaintiff had re-leased the vacated apartment, he, defendant, then made written demand for repossession of said second-floor apartment, and that while in the third-floor apartment received permission from the plaintiff to sub-lease portions thereof, and for this purpose advertised for a subtenant. This advertisement called for a subtenant for the unexpired period of the lease existing under the written contract.
We find, from all these successive acts on the part of the defendant, that there was never any intention between the parties to do otherwise than to pormit, *>y exceptional accommodation on the part of the plaintiff the use of the third-floor apartment, in lieu of the 0:1s so-pulaaed in the written contract, and that plaintiff never iniei I to, 'o. in fact, did, by any acts on his part, release ¡.he dt.feudp.iJ- free no obligations arising from the writcen rortvacu. Great ;t-re is laic upon a certain letter receiv'd by defendant Creía ■"luiatiff a *375verbage of which, defendant contends there waa a dear declaration on. the part of the plaintiff to oanoel the lease on the seoondfloor apartment. We have given this .letter careful attention, and find from its language that no such inference can be drawn,and all of the actions of the defendant subsequent to the reoeipt of said letter distinctly portray the defendant's continuous intention to abide by the written lease, and to assert any rights that he might have had thereunder.
On March 10, 1981, while still oooupying the third-floor apartment under the accommodations granted hy the plaintiff, defendant wrote plaintiff that' he again desired possession of' the second floor apartment, under the lease held by him, and dated September 80, 1980. It was to this letter that plaintiff's counsel, on the following day, replied that there could be no doubt that defendant "voluntarily oanoelled (his) lease on the rooms in the seoond-floor of the apartment Wo. 8608 St. Charles Ave.7 and that he had taken in lieu thereof, under the same terms and conditions, rooms on the third floor then occupied by him.
By no reasoning oan the expression set out in this letter of plaintiff's counsel, be construed aS a release from the written contraot of lease on the second-fl'oor apartment, for in the ssme letter the defendant is notified that counsel has advised plaintiff to hold defendant for the remainder of the term of the lease on the rooms then ocoupied by plaintiff, in the third floor. The letter, taken as a whole, .shows clearly that the plaintiff had never, at any time, intended to release defendant from his original obligation, although under accommodation he permitted him to occupy a different apartment in the same building. Even though the interpretation contended for be taken as oorreot, the subsequent aots of the defendant in retaining the oooupanoy of the third-floor apartment, and of paying, at the same time, the rent notes on the seoond-floor apartment, would estop him from denying the existence of the former lease, and his liability thereunder,
*376The mere removal of defendant from one apartment to another in. the same building, oould not have oanoelled the OSly written lease which appears to have been given tualess there was express agreement to this effect. The evidenoe does not show that auoh agreement was made, but on the contrary, the plaintiff's testimony, and all the aots of the defendant, lead to the oonolusion that there was nc agreement to cancel the written lease. It cannot be doubted for a moment that had the plaintiff not paid the rent notes falling due after removal into the third-floor apartment, that provisional seizure would have been properly issued, and the property and effects of the defendant in said third-floor apartment been subjoot to lessor's lien for the rent then due and owing.
The plea of failure of consideration for notes given in payment of rent under a written oontraot of lease, is inconsistent with the further plea or defense that the lease suea upon has been oanoelled by mutual agreement. One or the other of these defenses may be established in avoidance of liability, the burden of proof, however, in the case of either defense being upon the lessee.
We have carefully examined the case of Haas & Son, v. Bernhardt, 144 La., 927, and all other authorities therein oited by the Court, and now relied upon by the defendant, as establishing the law governing the instant ease. We oannot see the application of these authorities to the defenses herein pleaded. /yteiv" There having been no^written lease between the parties to this suit, we are of the opinion that the cited, eases are more available to plaintiff than to defendant, in establishing the doctrine there enunciated, to the effect that verbal agreements regarding a contemplated written lease, are as though not made until incorporated into tne xease, and until the lease itself is duly signed by the parties. We find no error in the judgment of the trial court.
It is therefore ordered, adjudged and decreed, that the judgment herein appealed from be, and the same hereby is, affirmed, at plaintiff's cost in both courts.
JUDGMENT AFFIRMED.
January 2, 1923.