This was an action brought to recover a balance of $80 claimed to be due for' the use of a part of a building owned by the plaintiff by the defendant. A written lease was executed on the day on which defendant took possession of the rented part of the building. The total rent for the year was $96, payable at the rate of $8 per month in advance. The first month’s rent was paid at the time of the making of the lease. The second month’s rent was paid about May 4, 1906. After that the defendant paid no rent. The written lease, in the ordinary form, provided, inter alia, that there should not be “any liability or obligation on the part of said lessor of making any alterations, improvements or repairs of any kind in or about said premises,” and that the liability of the lessee for rent should cease in case the building, without fault or neglect on the part of the lessee, be destroyed or so injured as to be untenantable. In the third month defendant served written notice on plaintiff that the building was untenantable. The building was not repaired. In the latter part of the month, the defendant moved out the greater part of his machinery. There was, however, testimony tending to show that defendant remained in pos*240session and used the premises for practically the remainder of the year.

The gist of defendant’s case was this: The verbal agreement was made before the signing of the lease to improve and repair the roof immediately so that it would not leak. The roof was never improved or repaired, but continued to leak, whereby the building was rendered of no rental value. • Without the improvements the building was of no rental value. Defendant also set up as a counterclaim damages caused by the leaking, due to the failure of the plaintiff to carry out his oral agreement. The court excluded testimony tending to prove this damage and its cause. The conclusion of the trial court must be sustained.

It is true, as was set out in Slafter v. Siddall, 97 Minn. 291, 106 N. W. 308, that where the lease itself contains no reference to the improvement of the premises, and it is conceded that the rental value was therefore increased, and the lease executed upon the understanding that improvements would be put in, the obligation on the part of the landlord becomes just as binding as though a provision to that effect had been inserted in the writing. In the case at bar, however, the preliminary agreement not to repair was not conceded, but was contested. Moreover, the parties here entered into a written and inconsistent agreement, and the tenant remained in possession. Under these circumstances the landlord is entitled to recover the agreed rental, and is not liable to the tenant for damages to his goods occasioned by the leased premises becoming and remaining out of repair. Beneteau v. Stubler, 79 Minn. 259, 82 N. W. 583; McLean v. Nicol, 43 Minn. 169, 45 N. W. 15; Haycock v. Johnston, 81 Minn. 49, 83 N. W. 494, 1118; 17 Cyc. 596. The court properly refused testimony on the counterclaim.

Affirmed.