whole. In such an action, on a breach of contract against the lessor, for a failure to deliver possession to the lessee, the latter is entitled to recover, as a measure of damage, for the wrongful withholding of possession by the lessor, the difference between the aggregate amount of rent reserved in the lease, and the value of the use of the premises to the lessee during the continuance of the tenancy, and although he cannot recover for a denial of the use of the premises, for any special purpose, which is unknown to the lessor,3 if he has the proper allegations in his petition, he can introduce evidence tending to show any particular loss sustained by reason of the lessor's breach. But if the lessee permits a third person to enter into possession, as between the lessor and lessee such possession would be equivalent to that of the lessee.5 He would afterward be estopped from setting up his claim thereto as against the lessor, and even though the lessor might deny him the possession of all the demised premises, if he entered into possession of any part thereof, he could be held responsible on a quantum meruit for the use of the premises in his possession.7

For injuries from

§ 142. Same defects in premises. The lessor's obligation and consequent liability to his lessee, however, after the demise of the premises, is not so great as to third persons, who are injured by reason of the defective condition of the premises. As between the lessor and lessee there is no warranty as to the condition of

1 Taylor's Land. & Ten., supra.

2 Hughes v. Wood, 50 Mo. 350; Green v. Williams, 45 Ill. 206.

3 Hughes v. Hood, 50 Mo. 350.

4 Taylor, § 177; citing Ward v. Smith, 11 Price, 19.

But this would not be the rule if the landlord accepted the new

tenant for the former one. Bacon v. Brown, 9 Conn. 338.

6 Ante, idem; Taylor's Land. & Ten., supra.

Hay v. Cumberland, 25 Barb. 594.

the premises.1 The lessee has equal means of information with the lessor, and as he takes upon himself these risks on entering the premises, he cannot claim redress from the lessor for an injury received during his occupancy either to himself, his subtenants, or his employees, unless the injury results from a defect which it was impossible for him to have determined, by the exercise of reasonable care,2 or unless the lessor misrepresented, or actively concealed the true condition of the premises.3 But the lessor's liability to the lessee for an injury resulting from a defective condition of the premises, is regulated largely by the customs of the section or district where the injury occurs, and where he is guilty of misrepresentation or concealment, as when he does not fairly state the condition of the drains,5 the lessee, on the proper showing on his part of diligence to determine the defect which contributed to the injury, would be permitted to recover damages for the injury sustained.6 And when the lessor retains possession of a part of the premises, and the lessee enters into possession of the balance, the lessor's liability to his lessee is generally determined by the exclusiveness of his possession, and although he cannot be held responsi

1 Taylor's Land. & Ten., § 175, p. 197. The lessor does not warrant the quality of the ore on the demised premises. Warren v. Phil. C. Co., 83 Pa. St. 437. But a warranty may and sometimes does arise from comparison of the demised ore with that of other mines. Pearson v. Marlin,

38 Wis. 265.

2 Bowl v. Hunkin, 135 Mass. 380.

3 Scott v. Simmers, 54 N. H. 426. Lessor is responsible for injuries arising from the bad repair of leased premises, if they were in that state when let, as it was his duty to make them safe. Stoetzele v. Swearingen, 90 Mo. App. 588.

4 Schnuer v. Dickson, 3 Brewst. 276.

5 Wilson v. Finch Hatton, 2 L. R. Exch. 236.

Taylor's Land. & Ten., § 175 et sub.

7 Looney v. McLean, 129 Mass. 33. But see Purcell v. English, 86 Ind. 34. The lessor could not be held liable for a nuisance, arising

ble where the lessee had access to the portion of the premises retained by the lessor, or where he has implied or actual notice of the defects or the risks that he assumes on entering, yet he is responsible to the lessee, as well as to a third party, for an injury resulting from an overt act of the lessor.2

§ 143. Risk assumed by lessee. The lessee of a mining lease not only undergoes the risk of quantity and value of the subject-matter of the demise, but he also assumes the perils arising from a defect in the title of his lessor,3 and if he accepts a lease without having previously investigated the lessor's title, he is liable, as a reward for his negligence and inactivity in this regard, to behold his outlay of capital and expenditures of time and labor go to the enrichment of someone else, and his valuable discoveries come to naught, so far as he is concerned. The lessee can only assert whatever title his lessor may have had,5 and it therefore becomes of the utmost importance in mining leases for him to see that this title is a good one before making any outlays, and the same rule applies as to the value and

from the lessees use of the premises. Eastlock v. Local Bd. Health (N. J. 1902), 52 Atl. Rep. 999.

1 Taylor's Land. & Ten., supra.

2 Taylor's Land. & Ten., p. 199; Elliott v. Prey, 10 Allen, 378; Alger v. Kennedy, 49 N. Y. 109. A tenant, whose term is ended by his landlord's tort, can recover for injury to his business or loss of profts caused thereby, when such losses are proven with reasonable certainty to have been due to the landlord's act. Murphy v. Century Co., 90 Mo. App. 621.

3 Eainb. on Mines, § 323 et sub., s. c. B. & W. L. C. 416; Roper v. Coombs, 6 B. & C. 534; Stone v. Guillim, 3 Taunt. 433; Fildes v. Hooker, 2 Nebr. 424; Santer v. Drake, 5 B. & Ad. 992.

4 Blanchard & Weeks for his lessors title will Mines, supra.

Ld. Cas., p. 416. "A lessee who fails to call have no favor in a court of equity." Bainb. on

5 Stranks v. St. Johns, 36 L. J. C. P. 118; s. c. B. & W. L. C. 416.

quantity of the minerals demised, for the lessor is under no implied warranty that they are of any particular quantity or value, and so long as the subject-matter of the demise was not actually exhausted at the time of the lease, the lessee cannot afterwards complain if he works out the mineral before the expiration of his lease, or if they cease to prove as valuable as he had anticipated.2 It is for this reason a good precautionary measure for the lessee to insert in the lease a provision releasing him from performance of his covenant at such time as the minerals cannot be profitably worked. But the lessor would not be released from an express warranty of value or quantity, nor would the rule as to the lessee's risk, in the absence of such a warranty, extend to a case where the subject-matter of the demise had ceased to exist before the execution of the lease, for in such case there would be a total failure of consideration on the part of the lessor, and the lessee could be subsequently released from his covenant.5 Generally, however, if the minerals. are in existence at the time of the demise and can be obtained by the proper labor and outlay, it is immaterial how

1 Warren v. Phil. C. Co., 83 Pa. St. 437. The lessor is not liable for failure of quantity or quality, without a clear covenant therefor. Carondelet Iron Works v. Moore, 78 Ill. 65; 2 M. M. R. 625.

2 Murdock v. Fullerton, 5 Mook's Eng. Rep. 118; s. c. B. & W. L. C., p. 430. And a mere statement of quality by the lessor is held to be a matter of opinion, and no warranty that they are of the quality stated. Carondelet Iron Works v. Moore, 78 Ill. 65.

$ Blanchard & Weeks Ld. Cas., p. 430.

4 Ante, idem.

5 Sholl v. German Coal Co., 139 Ill. 31; Clifford . Watts, L. R. 5 C. P. 577; Gowan v. Christie, 5 Mook, 114; Murdock v. Fullerton, 7 Sess. Ca. 404; s. c. 5 Mook, 414; L. R. 2 Sc. App. 273. But see Butte v. Thompson, 13 M. & W. 487; Ridgway v. Sneyd, 1 Kay, 627; Mellers v. Devonshire, 16 Beav. 252; Phillipps v. Jones, 9 Sim. 519; Skillen v. Logan (Pa. 1902), 21 Pa. Sup. Ct. 106.

unprofitable they may be, the lessee will be held to a performance of his covenant.1

§ 144. Liability to strangers. - Generally speaking, as between the lessor and lessee, the liabilities of the lessor cease whenever the lessee enters into possession of the premises.2 With the exception of the liability resulting from a defective condition of the premises, causing an injury, this is perhaps the invariable rule. In regard to third persons, however, the liabilities of the lessor are not entirely suspended by his transfer of the possession of the premises. The lessor would be liable for an injury resulting to a third party from a defective condition of the demised premises, whether the injury results directly from the dangerous condition of the premises at the time of the demise, or from a nuisance resulting from the lessee's use and occupation of the same.5 A mine or excavation near a public street has been considered a nuisance for which the lessor is responsible, and he can be made to respond in damages for an injury resulting from such a nuisance, although the lessee has entered

1 Gowan v. Christie, L. R. 2 Sc. App. 273; Phillipps v. Jones, supra; Butte v. Thompson; Ridgway v. Sneyd; Mellers v. Devonshire; Fort Scott C. & M. Co. v. Sweeney, 15 Kansas, 244; s. c. Mor. Min. Dig. 197; Skillen v. Logan, supra. But see Cleopatra Min. Co. v. Dickinson (68 Pac. Rep. 456), where it was held the particular wording of the lease contemplated the mine should yield a profit.

315.

2 Taylor's Land. & Ten., § 175, p. 193.

3 Larne v. F. H.

Co., 116 Mass. 67; Learoyd v. Godfrey, 138 Mass.

4 Nelson v. Liv. Brew. Co., 2 L. R. C. P. Div. 311; Taylor's Land. & Ten., p. 194. Lessor is liable for injury from defect in premises, existing at the date of lease. Stoltzelle v. Swearingen, 90 Mo. App. 588.

5 Congreve v. Smith, 18 N. Y. 79, where the nuisance consisted in a defective coal chute, dangerous in its nature, to public travel.

6 Taylor's L. & T., p. 194; Congreve v. Smith, supra. And see Hays v. Cohoes Co., 2 Comst. 159; St. Helena Smel. Co. v. Tipping, 116 Eng. C. L. 1093.