The appellant's right to review the rulings of the court on the demurrers to the special pleas, after nonsuit, suffered because of such ruling, although the general issue was also pleaded, is well established. Code 1907, § 3017; Bush v. Russell, 180 Ala. 590, 61 So. 373; Albany Warehouse Co. v. Fisk Cotton Co., 12 Ala. App. 527, 67 So. 728; Broadwell v. Imms, 14 Ala. App. 437, 70 So. 294.
If the tenant suffers total eviction, actual or constructive, he may plead this in bar of the landlord's claim for subsequently accruing rent. Tiffany's Landlord and Tenant, p. 1221; Abrams v. Watson, 59 Ala. 524; Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446.
The question here presented is whether the act averred in the second plea constitutes, as a matter of law, a constructive eviction; and while the authorities are not uniform, the weight of authority seems to establish the doctrine that, to constitute a constructive eviction, resulting from the interference with the right of the tenant to quiet enjoyment, by the landlord, not resulting in actual dispossession, it is necessary that the conduct of the landlord manifest an intention to deprive the tenant of possession of the rented premises. The intent need not be actual, but may be presumptive, or inferable from the character of the landlord's interference. Warren v. Wagner, supra; Tiffany's Landlord Tenant, § 185, p. 1258; Skally v. Shute, 132 Mass. 367.
A constructive eviction cannot be predicated on the acts or conduct of a third party, unless such third party is acting under the landlord's authority, express or implied. Warren v. Wagner, supra; Hyman v. Jockey Club Co., 9 Colo. App. 299,48 P. 671; Sherman v. Williams, 113 Mass. 481, 18 Am. Rep. 522; City Power Co. v. Fergus Falls Water Co., 55 Minn. 172,56 N.W. 685, 1006; Tiffany's Landlord Tenant, § 186, pp. 1301, 1302; Seaboard Realty Co. v. Fuller, 33 Misc. Rep. 109,67 N.Y. Supp. 146; Dewitt v. Pierson, 112 Mass. 8, 17 Am. Rep. 58, and notes 62, 63; Townsend v. Gilsey, 31 Super. Ct. 155.
The landlord of an apartment house, who lets it for a dwelling place to tenants, is not responsible for the conduct of other tenants acting within their rights in their own apartments; but if the conduct of the other renters is unlawful, and amounts to a nuisance, and such nuisance is established or maintained with the consent and connivance of the landlord, and as a consequence other tenants' rights are materially disturbed and interfered with, he has a right to quit the premises and treat it as a constructive eviction. 24 Cyc. 1147; Duff v. Hart (Com. Pl.) 16 N.Y. Supp. 163; Lay v. Bennett, 4 Colo. App. 252, 35 P. 748; Weiler v. Pancoast,71 N.J. Law, 414, 58 A. 1084; Dyett v. Pendleton, 8 Cow. (N. Y.) 727.
The averments of the second plea do not bring the case within these principles, and the court erred in overruling the demurrers.
The defense set up in the third plea seems to be rested on an express contract on the part of the landlord to protect the defendant against the acts and conduct of the landlord's other tenants (Abrams v. Watson, supra); and the plea was subject to the objection that it stated conclusions and not the facts showing the conditions of the contract and its breach (N.C. St. L. R. Co. v. Parker, 123 Ala. 683, 27 So. 323; Thomas v. Irvine, 171 Ala. 332, 55 So. 109).
Reversed and remanded.