#### Northwestern Realty Company, Appellant, vs. Hardy, Respondent.

*March 3*

March *23, 1915.*

*Landlord and tenant: Agreement to furnish heat: Breach: Justification for quitting premises: Notice to landlord: Complaints to janitor: .Principal and agent.*

1. Where the *lessee*has agreed to furnish heat for leased rooms, a mere slight temporary inconvenience does not justify the tenant in throwing up his lease. The breach must be substantial and of such duration that it can be said that the tenant has been deprived of the full use and enjoyment of the leased property for a material period of time.

2. The tenant has no right in such a case to treat the lease as terminated until the lessor has failed, after being notified of the trouble, to remedy it within a reasonable time.

3. The evidence in this case is *held*not to show such a violation of the lessor’s agreement as" would justify the tenant in quitting the premises.

4. Complaints made to a janitor of a lack of heat were not .in this case a sufficient notice to'the lessor, it appearing that the agents in charge of the building, to whom the tenant paid his rent monthly, were well known to the tenant and occupied an office in the building near his rooms.

Appeal from a judgment of the cireuit court for Milwaukee county: W. J. TurNer, Circuit Judge.

*Reversed.*

On September 2, 1911, plaintiff entered into a written lease with the defendant, who is a practicing dentist, for a certain room in the office building owned by the plaintiff in the city of Milwaukee. The lease was to run for three years at an annual rental of $300, payable in instalments of $25 on the first day of each month, and contained the following clause: “The lessor is to furnish heat when required by the season, accident and unavoidable delays excepted.” After the lease was executed, by agreement of the parties partitions were put in by the plaintiff so as to make' three rooms instead of one, and water tubing was extended in accordance with the *325wishes of the defendant, to give him proper facilities for carrying on bis work. Defendant continued to occupy the offices until the latter part of December, 1913, and paid Ms rent up to and including that month, at which time he moved out. Plaintiff brought this action to recover rent alleged to be due for the months of January, February, March, and April, 1914. By his answer to the complaint defendant alleged failure on the part of the plaintiff to comply with the provisions of the lease, in that it failed to properly heat defendant’s offices, and that the same were frequently cold and at such temperature that he was unable to carry on his work, and that after frequent complaints to plaintiff’s agents, without any action being taken to remedy the defects complained of, he notified such agents that he would abandon the premises, and did so on December 27, 1913; Defendant also counterclaimed for $150 damages alleged to have been sustained by him. The case was originally tried in the civil'court, where defendant recovered judgment for $1 damages and $18.90 costs, and on appeal to the circuit court this judgment-was affirmed. Plaintiff appeals.

For the appellant there was a brief by *Carroll ■& Carroll,*and oral argument by *Ceo. E. Carroll.*

For the respondent there was a brief by *Hennessey & Hen-nessey,*attorneys, and *Vincent D. Hennessey,*of counsel, and oral argument by *V. D. Hennessey.*

BaRNes, J.

The jury returned a general verdict for the defendant, on the theory that he had the right to vacate the premises because of the failure of the plaintiff to heat the leased rooms according to the provisions of the lease. The substantial question arising on the appeal is: Was the defendant justified in taking the action which he did *í*

Agreements on the part of landlords to furnish heat for their tenants are common, and there are numerous cases reported which deal with such covenants. They are not all in *326harmony, but the following propositions are supported by reason and authority:

1. A mere slight temporary inconvenience to the tenant does not justify him in throwing up his lease. A trivia! breach is not sufficient, but the breach must be substantial and of such duration that it can be said that the tenant has been deprived of the full use and enjoyment of the leased property for a material period of time. *Silber v. Larkin,*94 Wis. 9, 68 N. W. 406; *Wade v. Herndl,*127 Wis. 544, 107 N. W. 4; *Johnson v. Tucker,*136 Wis. 505, 508, 117 N. W. 1002; *Royce v. Guggenheim,*106 Mass. 201, 203; *Seaboard R. Co. v. Fuller,*33 Misc. 109, 67 N. Y. Supp. 146; *Parke v. Proby,*130 Ill. App. 571; *Lynch v. Baldwin,*69 Ill. 210; *Barrett v. Boddie,*158 Ill. 479, 42 N. E. 143; *Miller v. Maguire,*18 R. I. 770, 30 Atl. 966; *Rice v. Dudley,*65 Ala. 68, 71. We do not wish to be understood as approving all that is said in these cases.

2. The landlord is entitled to notice to the effect that the heat contracted for is not being furnished, and has a reasonable time after notice is given to remedy the defect complained of, and until such time has elapsed the tenant has no right to quit the premises because of the alleged breach. *Young v. Burhans,*80 Wis. 438, 50 N. W. 343; *Merida R. Co. v. Coffin,*123 N. Y. Supp. 120; *O’Gorman v. Harby,*18 Misc. 228, 41 N. Y. Supp. 521; *Siebold v. Heyman,*120 N. Y. Supp. 105; *Berlinger v. Macdonald,*149 App. Div. 5, 133 N. Y. Supp. 522; *Russell v. Olson,*22 N. Dak. 410, 133 N. W. 1030, 37 L. R. A. N. s. 1217, and cases cited; *Murrell v. Jackson,*33 La. Ann. 1341; *Green v. Redding,*92 Cal. 548, 29 Pac. 599; *Filkins v. Steele,*124 Iowa, 742, 100 N. W. 851.

When this lease was made the parties did not contemplate that the landlord would station an employee in the leased rooms to see that a uniform and sufficient amount of heat was furnished at all times. The lessee did not want any such fixture in his rooms. It is not easy to avoid some fluctua*327tions in beat in tbis climate. Tbe facts wrere peculiarly witbin tbe knowledge of the tenant. If be was being deprived of tbe full beneficial use of tbe space be bad leased, it was bis business to say so and it was tbe business of tbe landlord to remove tbe cause of complaint. But until a complaint was lodged and tbe lessor failed within a reasonable time to remedy tbe trouble complained of tbe tenant was not at liberty to treat tbe lease as terminated.

It is pretty apparent from tbe testimony in tbis case tbat tbe tenant quit tbe leased rooms for- business reasons, and not because of tbe beat situation. Tbe jury must bave bad some doubt upon tbe subject, else it would bave awarded defendant tbe substantial damages tbat were proven without dispute, 'instead of returning a verdict for $1. It is true tbe defendant testified tbat bis rooms were too cold at times, and so did some of bis office girls and one or two of bis patients. However, tbe real inquiry was: "What was tbe plaintiff advised of and wbat did it do to remedy tbe complaints made? Here tbe case of tbe defendant is fatally weak. _ Accepting bis own evidence as true, be complained of a frozen pipe in December, 1911, or January, 1912. Tbe pipe was thawed out by the plaintiff. About a year later be again complained of pipes freezing in bis office, and tbis complaint was attended to. Neither of these complaints related to tbe insufficiency of tbe beat furnished during office hours, but related to conditions which resulted from shutting tbe beat off at night when the office was not in use. Tbe third and final complaint was made about eleven months later, and about November 10, 1913. On tbis last occasion defendant testified that be informed one of tbe agents who bad charge of tbe building tbat bis rooms were cold and tbat tbe oil in bis dental chair bad become so chilled tbat be could not manipulate it. He says tbe agent told him be would try and remedy it. Defendant’s agents deny tbat any complaint was made to them about heating during tbe latter part of tbe year 1913. At the time tbis *328alleged complaint was made defendant bad paid bis rent to December 1st. Later be paid tbe rent for December and occupied tbe rooms until tbe latter part of tbe month. We can find no testimony in tbe record in any way indicating that tbe rooms were not sufficiently and adequately beated from tbe time tbe alleged complaint of November, 1913, was made until the defendant quit tbe premises. This evidence fails to show such a violation of any obligation assumed by tbe lessor as would justify tbe lessee in quitting tbe premises. These three widely separated delinquencies created no substantial breach of tbe agreement to beat, and there was neither refusal nor failure to remedy tbe conditions complained of.

Tbe defendant testified that at times be complained to tbe janitor of lack of beat. This was natural enough if more beat was desired when tbe complaint was made. Tbe building was not leased from tbe janitor, however, and there was nothing to show that be was an agent of tbe owner for tbe purpose of receiving notice that tbe terms of a lease were being violated, any more than be was for tbe purpose of receiving rent. Tbe agents in charge of tbe building were well known to tbe defendant and occupied tbe office directly under tbe one used by defendant and on tbe next floor below. Rent was paid monthly to these agents for more than two years, and we think that an important notice of tbe kind here involved should have been served on them rather than on tbe janitor. If tbe agents were chargeable with knowledge of what bad been communicated to tbe janitor, tbe defendant has not shown any sufficient reason or justification for vacating tbe premises.

*By the Court.*— Judgment reversed, and cause remanded with directions to enter judgment for plaintiff as prayed in tbe complaint.