Long v. Fitzimmons , 1 Watts & Serg. 530 ( 1841 )

The opinion of the Court was delivered by

Rogers, J.

The jury might well find from the testimony to which the court refers, the existence of a contract of lease. The testimony may be reconciled, on the supposition that the contract with the plaintiff was the one under which the defendants took possession; and if so, it was not competent for them to dispute his title, when he calls for an account of the profits. By the contract, the defendants were to have one-third, and the plaintiff two-thirds of the tolls to be received in kind, at a rate well understood and regulated by the custom of the country. If, therefore, the defendants undertook to sell the plaintiff’s share of the tolls without his consent, they rendered themselves personally liable, notwithstanding the individuals to whom it was sold afterwards became insolvent. So if the tolls in the case of Straub were compounded, and an agreement made to take a certain stipulated price in money in lieu thereof, it may be recovered as tolls under this form of declaration. And if the defendants failed to recover the debt from Straub, because by any mismanagement they made inferior flour, this is no reason why they should not account to the plaintiff for the price agreed upon. The arrangement, which is a customary one, where there is a large quantity of grain to grind, was for the benefit of all parties, and for. this reason it was proper to confine the plaintiff to the stipulated price, although it would be unreasonable that he should be compelled to take less. He has a right to charge it as so much toll, for which it is the equivalent ; but in estimating its value, the jury ought not to be permitted to exceed the amount which the defendants, who acted in good faith, agreed to receive. No reason has been given for a deduction on account of the loss occasioned by the defendants’1 default. If it had been caused by any thing wrong in the construction of the mill or dam, it would alter the case; but it cannot extend to a deduction occasioned by their own negligence or want of skill.

The court was right in instructing the jury that if nothing is said in the lease about it, the tenant is bound to keep the premises in repair. A tenant is bound to commit no waste, and to make fair and tenantable repairs, such as putting in windows or doors that have been broken by him, so as to prevent waste and decay of the premises; but not to make substantial and lasting repairs, such as to put on new roofing: (2 Esp. N. P. 590). He is not liable for general repairs, Horsefall v. Mother, (Hall’s N. P. C. 7); nor is he compellable to restore premises, if burned down, or become ruinous by any other accident, without any default on his part. And in all cases there is an implied assumpsit arising out of the relation of landlord and tenant, to use the premises in an ordinary and proper manner. Powley v. Walker, (5 Term Rep. 373); Cheetham v. Hampson, (4 Term Rep. 318); 2 Atk. 388; 3 Atk. 518. If a tenant chooses to put permanent repairs on the leased property, without the consent of the landlord, he cannot charge them in an account with his landlord. In the evidence, though nothing is said about repairs, except in the contract with the guardian of the children of David, yet this cannot affect the case: the jury have found, that the defendants entered on the enjoyment of the premises under the contract with the plaintiff. Besides, we discover no proof that the defendants paid any thing for the repairs. It would rather seem that they were paid by the plaintiff.

It is said that an action of account render' will not lie. It is a general rule that account will not lie for rent reserved on a lease; but this must be understood of a certain rent, and not as here, where the amount reserved is uncertain, and consequently where an account on oath may be necessary to ascertain the amount received.

Judgment affirmed.