dissenting:
I am unable to concur in the conclusions and the result reached by the majority.
In her answer to the complaint in the Court of General Sessions the defendant alleged that she was entitled to a set-off against her rent because the plaintiff’s violations of the housing code diminished the value of the premises. After the evidence on the issue thus raised was presented before the jury, the trial court directed a verdict for the plaintiff on that issue.
The record before us contains a document entitled “Reasons for the Court Reversing its Original Ruling and Now Granting Plaintiff’s Motion to Direct a Verdict on Defense of Set-off under the Theory of Javins v. First National Realty *1278Corporation.” As stated by the court, the reasons were as follows:
The evidence of the defendant in this case with respect to housing violations which she claims existed during the term of her tenancy and for which she claims a set-off against all or part of the rent is so vague and imprecise that it cannot support a set-off against the rent on the theory of Javins v. First National Realty Corporation. To submit this question to the jury on the basis of such evidence would be to permit mere speculation. Viewed in its best light, it consists of this. From time to time during the course of the tenancy, the exact length of such periods not being stated, the premises were either not heated or poorly heated; there were cracks and holes in the plaster on the walls and ceilings of several rooms in the apartment ; at one time one of the windows in one of the rooms was out (the exact length of time not stated); from time to time there was no hot water; some of the floors were uneven and some of the floor boards loose; for some indefinite period of time the door would not open and shut properly; for indefinite periods of time she was troubled by rats and roaches; on occasions there was some trouble with plumbing, the exact period of time not stated. The plaintiff’s testimony, which was not rebutted by the defendant, showed that carpenters, plumbers, plasterers, heating experts, exterminators, all went to the premises in question, some of them on numerous occasions, to alleviate the defendant’s complaints. The defendant’s own witness from the housing inspector’s office testified that on a number of occasions during the period of the tenancy, all alleged violations were abated by the landlord. There was no evidence of any unreasonable delay or neglect by the landlord in taking care of the complaints. There was no evidence of the extent to which, if any, the defendant was deprived of the use of the premises and absolutely no evidence of the difference in the value of the premises as the defendant claimed existed and its value without the alleged violations.
As a matter of fact, the evidence was so indefinite as to extent of the violations at any one time and the length of the violations that it is difficult to see how even an expert could have made any worthwhile estimate of the loss in value to the defendant. But assuming such expert testimony is not necessary, the evidence is certainly not sufficient for any finder of fact to determine how much, if all or any, of the rent should be suspended by the alleged breaches of the landlord. Moreover, as I have indicated, the defendant does not deny that the landlord sent repairmen to her apartment on numerous occasions to take care of her complaints.
For these reasons, the court does not believe there is sufficient evidence to submit the issue of set-off against the rent, under the theory of the Javins case, to the jury.
To me it is clear that the matter of alleged housing violations was presented and fully explored before the trial judge. He concluded that there was no evidence to justify a finding that the value of the premises had been diminished by the alleged violations. He explained the basis for his conclusion, and I think he was right. In the light of this conclusion an order directing the deposit of less than the stipulated rent would have been arbitrary and capricious. In my view also, since the matter had been fully litigated, a further hearing was unnecessary.
I respectfully dissent.