On Motion for Rehearing.
Appellee insists that this court erred in reversing and remanding this cause because of the failure of the trial court to submit to the jury the question of damages resulting to appellant, by reason of the building which she had rented becoming untenantable, pleaded by way of cross-action: First, because there was no pleading seeking damages for the months which the jury found the building to be untenantable; second, because the charge requested asked for damages for the five months “involved,” which appellee contends were the months of March, April, May, June, July, and august, the months for which the rent was not paid, and that -there was no testimony that the building was untenantable for these months; third, that the court erred in holding that appellant could offset her damages occasioned during the winter months, by reason of the premises becoming unten-antable, against rents due for the other remaining months of the lease contract, contending that, she having remained in possession of the'building and paid rents, she was estopped to claim damages therefor.
The record in this case does not bear out appellee’s first contention, that it was not pleaded that the damages were occasioned-during the winter months of the lease contract. By paragraph 4 of appellant’s answer and cross-bill she pleaded that the building became out of repair and untenantable by reason of the failure of appellee to properly repair the boiler and radiator situated in the building, and that it became continuously thereafter, until the termination of the lease contract, untenantable.' This allegation alone would be sufncient to cover any month in which it could have been shown the building was untenantable. But by the fifth paragraph of her answer and cross-bill she alleges positively that her damages were occasioned by the loss of net profits during the months of December, January, February, March, and April of 1918 and 1919, respectively. This contention is without merit, and is overruled.
As to the second proposition, .that the charge requested limited the finding of the jury to the five months “involved” might be ambiguous, but it does not follow that this would justify the trial court in refusing to submit the question of damages. Appellee sued for rents for the last five months of the lease contract. Appellant by way of cross-action, sued for damages for the first five months of the lease contract, alleging the building was untenantable during said first five months. Just which five months were referred to by the charge requested as being *654“involved” is not absolutely clear.' However, the case was submitted upon special issues, and it became the duty of the trial judge, upon being presented with a special charge involving an issue in the ease raised by both the pleadings and the evidence, to have given a correct charge involving the issue, regardless of any defect in the charge presented. As to the sufficiency of the evidence to require the court to submit the issue of damages, we do not change our view from that heretofore announced.
The third proposition contends that the court .erred in holding that a tenant could offset a claim for damages because of a breach of a Covenant in the rental contract in a suit for rents. It has been well established by our courts that in actions for rent it is competent for the defendant to plead by' way of reconvention for damages for a breach of the plaintiff’s covenant to repair. The Supreme Court, m the ease of Coleman v. Bunce, 37 Tex. 171, stated:
“Taking this rule without restriction, and looking to the meaning which has been given the term ‘reconvention,’ we do not hesitate to say that the defendant in this case would have a right to plead, in answer to an action for rent, a breach of covenant to repair, especially as it would seem that the covenant and the rent charge were part and parcel of the same contract.”
In this case the court followed the above case and other cases heretofore decided by the Supreme Court, announcing this same doctrine. Walcott v. Hendrick, 6 Tex. 418; Carothers v. Thorp. 21 Tex. 355; Duncan v. Magette, 25 Tex. 255; Castro v. Gentiley, 11 Tex. 28.
It was also held by the Supreme Court in the case of Calhoun v. Pace, 37'Tex. 455, cited in our former opinion in this case, that damages for a breach of contract to repair may be offset in an action for rents, and especially such damages as arose out of or were incident to the contract. In the instant case, the appellant pleaded and proved that as a part of the rental contract it was agreed and understood that the appellee herein was to make such repairs as were necessary to make the building tenantable, for the purpose of which it was rented. She also pleaded and proved that, though often requested, the appellee had failed and refused to properly repair the radiator and the boiler, constituting the heating equipment for the building, and that she was damaged by reason of the same becoming out of repair for the months of December, January, February, March, and April, 1918 .and 1919, respectively.
We are of the opinion that we have correctly decided this case in our former opinion, and the motion for a rehearing is overruled.
Motion overruled.