Perret v. Dupre

delivered the opinion of the court.

In 1836, the plaintiff, then Madame Miramond, leased to the commercial firm of Follain, Fux & Co. a certain brick store in the town of Opelousas, at the corner of Main and Bellevue streets, together with several out houses and dependencies, for the space of six years, to begin on the 16th of March, 1838, at the rate of $1000 per annum, payable semiannually. This lease was subsequently transferred to the present defendants, who accepted the same and put themselves in the place and stead of the original lessees. This suit is brought to recover two instalments of the rent that became due on the 15th of March, 1840, and on the 15th of September following. By a supplemental petition, the plaintiffs prayed for a dissolution of the lease, by reason of the failure of defenuants to pay their rent. The answer, after admitting the transfer to defendants of the lease of Follain, Fux & Co., avers that the principal part of the property thus leased is a large brick store house, in which they have constantly kept on hand a large stock of dry goods, groceries, hardware, &c.; that said store house, from the badness of the materials of which it is constructed, or of the workmanship, is so cracked in several places that it is in danger of falling down, and from •the wind and rain passing through it by the roof and walls, has become almost useless, and has caused great damage to the goods and merchandize of the defendants; that the plaintiffs, although frequently requested to make the necessary repairs have constantly neglected and refused to have them done; that the defendants are not bound to pay any rent until such repairs are made; but are entitled to damages to the amount of $2000, which are prayed for in reconvention. The plaintiffs had a judgment below in their favor, and defendants appealed,

It appears from the evidence that the house is in such a situation as not to be susceptible of being repaired, and rendered safe; that it must be pulled down and entirely rebuilt; the foundations have given way and sunk, and the walls are *344cracked, ill several places, but such as it is, the defendants pave 0CCUpje¿ ¿urjng the twelve months for which the rent .g nQW claimed, and continue to occupy it as a store. In the 0f July, 1840, the impracticability of repairing the house having been ascertained, plaintiffs proposed to annul the lease. This was not assented to, and on the 9th of August following, the defendants wrote a letter calling On the plaintiffs to make the necessary repairs, and advising them that if they refused to have them done, they would cause the house to be repaired at the plaintiffs’ expense, and retain the amount expended, on the rents due or to become due. No complaint is made of any loss or damage sustained up to that period, which was but a few weeks before the expiration of the time embraced by plaintiffs’ claim; and long before writing this letter they had notified plaintiffs through 'their agent that they would withhold the rent until the repairs were made, but not a word appears to have been said about any claim for damage done to their goods. Had the repairs been practicable, and had they been done either by plaintiffs or by the defendants themselves, we may well infer from their letter that they would have continued to occupy the store without pretending to any indemnity. The defendants having consulted'their .undertaker about their repairs, and understanding that they could not be made, purchased them a lot and had a store built on it for their use. In this situation of things they do not complain Of that part of the judgment which decrees a dissolution of the lease; but they insist that they are entitled toan indemnity. The damage done to their goods appears to have been inconsiderable, and is not shown to have been sustained during the time for which rent is now claimed. From the testimony We are inclined to believe, that it happened subsequently. Whether any indemnity is due at all, after the defendants have refused to dissolve the lease, and have continued to occupy this store in its crazy condition; well knowing that it was not susceptible of being repaired, is a question which will present itself when the rent accrued subsequently, will be demanded *345of ’them. The judgment below is however erroneous, in allowing interest on the instalments of the rent claimed from the time they became due. It should have been allowed only from the day of the judicial demand.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, except as relates to the interest of five per cent, on the amount claimed, which . is hereby allowed only from the third of June, 1841. The costs of this apppeal to be borne by the plaintiff and appellee.