Landlord and Tenant, Eviction. If the lessee of a part of the ground floor of a building which is let to him "to use the same for a stable, and to make all repairs, except repairs to the roof," occupies that part of the building as a stable and keeps six or seven horses there, and if such lessee employs a plumber to repair a leak in a frozen water pipe and the repairs are done imperfectly so that the pipe still leaks, and the lessor turns off the water from the stable and refuses to allow the lessee to have any water for his horses from the other part of the building as the lessor could do with very little inconvenience to himself, and the lessee then hands to the lessor the rent which on that day is due in advance for the next month, and the lessor refuses to receive it, and thereupon the lessee, being denied the use of water for his horses, is obliged to move out and does so, it can be found on these facts, that the lessor by unjustifiably refusing to permit the lessee to have any water and afterwards by refusing to receive the rent gave the lessee the right to treat his acts as a constructive eviction, which right the lessee by yielding up possession had elected to exercise; and that accordingly the lessor cannot maintain an action to recover the rent which he had refused to accept.
De COURCY, J.
This action is for city water furnished and for rent payable in advance by the defendant lessee; and the defense is an eviction. Among the facts found by the judge of the Municipal Court are the following: The leased premises consisted of a stable wherein the defendant kept six or seven horses. During a few days of exceedingly cold weather the water froze in the pipes and caused them to leak; and the defendant, being unable to obtain any water for his horses, employed a plumber to repair the pipes. In order to do this work it was necessary for the plumber to go into the hospital part of the building, which was separate from the stable. Next morning, when the defendant needed some water for his horses, he found the supply cut off. This was done by the plaintiff's agent, without telling the defendant that the repairs were not done properly; and the agent informed him in an offensive manner that he could have no water until the pipes were repaired. There was no way that the defendant could obtain any except from the main building, and this would cause but little inconvenience to the plaintiff. The agent nevertheless refused to allow him to take any. It was difficult to secure the services of a plumber on account of the very cold weather. The judge further found that the defendant, being denied access to the water, was obliged to move out and did so; that the plaintiff had full control of the water, and unjustifiably refused to permit the defendant to have any; and that this constituted an eviction.
We are of opinion that the trial judge was warranted in concluding that the plaintiff deprived the defendant of the enjoyment of the leased premises by rendering them unsuitable for the purposes for which they were hired. From the facts stated, and from the subsequent conduct of the landlord in refusing to accept rent, it well could be found that he intended that the tenant no longer should occupy the premises. And the tenant, notwithstanding his earlier offer to pay the rent, elected to regard the acts of the landlord as a constructive eviction, by yielding up possession within a reasonable time. Nesson v. Adams, 212 Mass. 429, and cases cited. Smith v. Tennyson, ante, 508. In principle the case is similar to that of constructive eviction of a tenant by a failure to furnish heat. See 37 L.R.A. (N.S.) 1217, note.
What we have said disposes of the requests for rulings, so far as material. The order of the Appellate Division must be reversed, and the original finding of the single judge affirmed.
So ordered.