This suit was instituted by appellee against appellant, for the recovery of the sum of ?875, alleged to be due as rents upon the auditorium theater building, in Waco, under the terms of a written lease contract. The appellant answered by general demurrer and general denial, and by a special plea adjnitted the lease contract, but alleged that it contained the convenant whereby the lessor “agrees to repair any wear and tear of said building during the continuance here*652of as may be necessary to keep said building tenantable.” Appellant further alleged that, shortly after the execution of this contract, the boiler and radiator which were used to heat the building, by reason of natural wear and tear, became defective and inadequate for such purpose, and that the building became untenantable for theater purposes, being the purpose which it was agreed the building would be used, and alleged that, although appellee made some effort to repair the same, yet said repairs were insufficient, and the building was continuously untenantable during the life of the lease, and that, although often requested, the appellant failed and refused to make repairs upon the heating plant, as per lease contract, and that by reason of such breach of contract the appellant was damaged in the sum of $3,000, for which she prayed judgment, less the sum of $875, the amount of the rents for which appellee sued.
The case was tried before a jury, and upon the special issues submitted they found that the building was untenantable for the purpose for which it was rented for the months of November, Eecember, January, February, and March, 1918 and 1919, respectively. The trial judge entered judgment for appellee for the sum of $875, and that appellant take nothing by her cross-action. Appellant’s motion for a new trial was overruled, to which she excepted, and here now presents her case for our consideration. The facts necessary to a decision in this case will be found in our opinion.
Opinion.
We are of the opinion that the appellant’s first assignment of error should be sustained. By this assignment she complains of the failure of the trial court to submit the issue of' the amount of damages she sustained by reason of the building becoming untenantable, because of the failure of appellee to repair the heating plant as per contract. The record does not .disclose the reason why the trial judge refused to submit this issue, but from the brief of appellee it is apparent that it was refused upon two grounds: First, because the evidence was insufficient to sustain the allegation for damages; and, second, it is contended that, the proof halving shown that appellant remained in possession and paid rent for the months which the jury found the building to be untenantable, she was thereby, as a matter of law, estopped to claim damages because of the failure of appellant to make such repairs as were necessary to make the building tenantable for the purpose for which it was used.
In both these conclusions the trial court erred. As to the first ground, appellant pleaded, and the proof showed, that there was a great falling off in the patronage' of the shows put on by her, due in part,' at least, according to the testimony, to the fact that the building was not properly heated. Appellant testified that many patrons, after entering the building, would come and demand their money back, because the building was cold. She further testified that patrons threatened to sue her because of catching colds and taking pneumonia from sitting through shows without the building being heated; that many people told her they would not coiné to the show because the building was not properly heated; that people during show hours would have to get up from their seats and go to the radiators to get warm; that at all times they had to sit with their coats and wraps on to keep warm. She further testified that the furnace was old and worn from long use, and that the natural wear and tear thereon had caused it to become inadequate ; that the furnace- was cracked, and that the water flues through which the heat was to go had become rusted and cracked. She further testified that the average attendance was only about 475 persons per show, as compared with 800 or more in the previous years. She further testified to the prices charged per ticket, and the average expense of operation, which furnished a basis for the jury to calculate the damages, if they believed her testimony. It is true that there was much testimony that the falling off in attendance was due to an epidemic of influenza, which caused people to avoid public gatherings, and to the further fact that soldiers training at the cantonment at Waco began to leave soon after the Armistice was signed in 1918; but these matters were for the jury, and from which they might determine if appellant was really damaged because of the lack of the proper heating of her theater, or other causes, as well as to enable them to determine the amount of damages appellant was entitled to receive because of the failure of the heating plant to adequately heat the building. We think the testimony, was sufficient to require the court to submit the issue of damages to the jury.
As to the second ground, we are of the opinion that the trial court also erred in holding that appellant, having remained :n possession of the building and paid rents, was estopped to claim damages occasioned by the lessor’s failure to repair the building and make it tenantable for the purpose for which it was rented for the months in which the jury found the building to be untenantable, t is not the law t'hat a tenant is required to abandon the premises in order to recover damages for a breach ⅜>£ contract on the part of the lessor, because of his failure to make such repairs as necessary to make the premises tenantable.. It would be a harsh rule to require appellant to abandon the premises before she would be entitled to recover for a breach of contract on the part of the lessor to keep the building in a suitable condition to carry on her business, for it might be that another building would not be accessible, and *653the lessee would thereby be required to discontinue business. The contrary is the rule. A tenant may remain in possession, pay rents, and maintain an action against the lessor for any damages suffered during the term of the lease by reason of the lessor’s failure to repair the premises as per his contract, and such claim for damageá may be set up in a cross-action against the lessor in a suit instituted by him against the lessee for rents. Iiincheloe Irrigation Co. v. Hahn (Tex. Civ. App.) 132 S. W. 78, affirmed in 105 Tex. 231, 146 S. W. 1187; N. Y. & Tex. Land Co. v. Cruger (Tex. Civ. App.) 27 S. W. 212; Calhoun v. Pace, 37 Tex. 454; Vincent v. Central City Loan & Investment Co., 45 Tex. Civ. App. 36, 99 S. W. 428; Ingram v. Fred (Tex. Civ. App.) 210 S. W. 298, writ of error refused in 210 S. W. 298, footnote; Lovejoy v. Townsend, 25 Tex. Civ. App. 385, 61 S. W. 331; Duran v. Lucas (Tex. Civ. App.) 144 S. W. 695; Gillispie v. Ambrose (Tex. Civ. App.) 161 S. W. 937.
Since this case is to be reversed and remanded, we do not deem it necessary to discuss all of the assignments of error, but only such as may affect another trial.
By appellant’s second, third, and fourth assignments she contends that her motion for judgment should have • been sustained, because of the finding of the jury that the premises were untenantable until the month of March, 1919, at which time it is claimed the testimony shows she abandoned the premises, These assignments are not well taken, for it is not pleaded as a defense in this suit that she abandoned the premises because of the failure of the lessor to make necessary repairs to make it tenantable, but the only defense pleaded and relied on was that she had been damaged by reason of such failure to repair, and for which damages she prayed judgment, less an offset of the rents due.
The court did not err as complained of in assignments 5 and 6, in refusing to permit the witnesses offered to testify as to the reasonable market rental value of the premises in question during the time the same was untenantable. We are of the opinion that the measure of damages under the pleadings in this case is such loss of profits to appellant’s business as the jury may find she suffered by reason of appellee’s failure to repair the heating plant, and thereby make the auditorium tenantable for theater purposes. To permit a recovery for the loss of profits, and also an additional recovery for the difference in the rental value of the premises, in the condition they were and in the condition they should have been if the heating plant had been adequate, would allow a double recovery, since appellant would be made whole under her contract when she recovered the loss of profits to her business, without regard to the rental value of the leased premises.
'We are- of the opinion that this cause should be reversed and remanded for the reasons stated.
Reversed and remanded.