#### Auer, Respondent, vs. Vahl and another, Appellants.

*October 15*

November 7, *1906.*

*Landlord and tenant: Duty to make repairs: Modification of leaser Abandonment of premises.*

1. An oral agreement, made some months after the execution of a. written lease, relating to the making by the lessor of certain specific repairs in the leased building is *held*to have been separate from and independent of the lease and not to have altered or modified a provision therein that the lessee should make alL necessary repairs inside the premises.

2. Where the lessee expressly covenanted to make all necessary repairs inside of the leased premises, he cannot justify an abandonment of the lease and refusal to pay rent on the ground of the lessor’s failure to make such repairs.

Appeal from a judgment of the circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.

*A'ffirmed.*

It appears from tbe record that April 6, 1904, tbe plaintiff by a written lease leased to tbe defendants tbe store and living rooms in tbe rear of tbe store and upper rear rooms of tbe premises described for tbe term of three years from August 1, 1904, at the monthly rent of $35, payable on tbe 1st day of each month during tbe term, and tbe first or August payment was, therein made payable April 11, 1904,» and was-paid on that day, which lease contained several mutual agreements or covenants, among others tbe following:

“It is mutually agreed and understood that tbe said lessee-shall keep tbe said premises in as good repair as tbe same are-in at tbe commencement of said term, reasonable use and wear thereof and damage by accidental fire or other accidents, not happening through tbe neglect of said lessee, bis agents or servants, only excepted. It is mutually agreed and understood that the said lessor shall keep tbe *outside*of said premises in good repair and whole, and tbe said lessee shall make all necessary *repairs inside*of said premises.”

And further, “it is mutually agreed and understood that the said lessee shall keep tbe glass in tbe windows and doors *636in good repair and whole, damage by the elements only excepted.” At the time of making the lease the premises were -occupied by other persons who moved out the latter part of July, 1904. The defendants claim that the premises were -then in bad condition. August 1, 1904, the defendants wrote to the plaintiff to the effect that if he was willing to fit up the store and rooms at once as indicated therein at a cost of $55 the defendants would be willing to pay on such bill $20, and designated the name of a person who would do the work for the amount stated. August 6, 1904, the defendants again wrote to the plaintiff that they could not understand why he did not let the contract to repair the store and rooms, and urged him to do so. August 11, 1904, the plaintiff wrote to the defendants to the effect that their representative had left with the plaintiff the Thursday before the key to the front door of the premises which they leased from August 1, 1904, asking the plaintiff to fix up the same, and further, that “we have repapered the walls of the store and the living rooms in the rear, and painted the woodwork in the store, as well as in the rooms and the store front. Will you kindly call or telephone and let us know what disposition you desire to have us make of the key, which will be at your office tomorrow boon ?”

December 15, 1904, the plaintiff commenced this action. The complaint alleges two causes of action, one to the effect that the defendants had voluntarily and without cause abandoned the premises on or about August 12, 1904, and had not paid the rent for September, October, November, and December, 1904, amounting to $140, except that the plaintiff had collected from other parties as and for rent of certain portions of the premises for those months $72, leaving a balance of $68, for which he prayed judgment-. For a second -cause of action the complaint alleges that the defendants agreed to pay to the plaintiff the $20 mentioned for calcimim ing, painting, and papering certain rooms upon the premises, •and also demanded judgment for $20.

*637Tbe defendants answered and admitted tbe making of tbe lease and tbe failure to pay rent during tbe four months-mentioned, and that tbe premises were in good condition and repair at tbe time tbe lease was made, but denied that they abandoned tbe premises without cause, and alleged in effect that tbe former tenants bad left tbe premises in an unfit condition for tenancy, and that thereupon they bad notified tbe plaintiff that they would not retain possession unless the premises were put in good repair, and that tbe plaintiff bad failed and neglected to repair as requested by tbe defendants. Tbe defendants further answered by way of counterclaim, and claimed $200 damages for such failure of tbe plaintiff to repair tbe premises as requested, with which tbe plaintiff took issue.

Tbe court instructed tbe jury that tbe plaintiff was entitled to recover tbe $68 for loss of rent as mentioned, and submitted to tbe jury tbe question as to tbe defendants’ liability for tbe $20 mentioned. Tbe jury found that tbe defendants were not liable for tbe $20, but only for tbe $68. From tbe judgment entered thereon in favor of tbe plaintiff for $68 and costs tbe defendants appeal.

For tbe appellants there was a brief by *McElroy, Esch-weiler*& *Wetzler,*and oral argument by *8. F. Wetzler.*

*Joseph G. Hirschberg,*for tbe respondent.

Cassoday, C. J.

The jury found that tbe defendants were not liable to tbe plaintiff for tbe $20 which tbe defendants bad offered in August, 1904, to contribute in case tbe plaintiff would make certain repairs. That eliminates from tbe case all question as to tbe plaintiff’s second cause of action.

Tbe error assigned and relied upon is that tbe court instructed tbe jury to render a verdict in favor of tbe plaintiff’ for tbe loss'of rent amounting to $68. This ruling was evidently based upon tbe ground that it appeared from tbe undisputed evidence that tbe defendants bad voluntarily aban*638doned tbe premises without cause; aud hence, under the written lease, they were liable for the rent which they had therein agreed to pay. It is conceded in the answer that the premises were in good condition and repair at the time of the execution of the written lease. As indicated in the foregoing •statement, the plaintiff was only to “keep the outside of said premises in good repair and whole,” and the defendants therein expressly covenanted and agreed to “make all necessary *repairs inside*of said premises” and to “keep the glass in the windows and doors in good repair and whole” and the premises in good repair. There is no claim that the plaintiff breached such written lease, nor that by the express terms of the written lease the defendants were not bound to “make all necessary repairs *inside*of said premises.” The claim is that the plaintiff breached an alleged oral agreement made four months after the execution of the written lease. It is said that when such oral “agreement was made a new element was injected into the contract of leasing, viz., a covenant on the part of the lessor to make certain repairs, and from that time on the lease must be treated as though the agreement were expressly incorporated and stated in it.” We find no evidence to support such contention. Neither the answer nor the letters of the defendants make mention or reference to any alteration or modification of the written lease. The oral agreement or attempted agreement relating to certain specified repairs was entirely separate and independent of the written lease. It was the basis of a separate and independent cause of action in the complaint, and so treated by the defendants and the trial court. On the undisputed evidence we must hold that the written lease was never altered nor modified.

As the case stands the defendants are seeking to justify their abandonment of the premises and refusal to pay rent -on the ground that the plaintiff had failed to do what they themselves had expressly covenanted and agreed to do. It is *639well settled that, in the absence of any secret defect or deceit or warranty or agreement on the part of the landlord to repair, the tenant takes the leased premises in the condition they happen to be in at the time of the leasing. *Cole v. Mc*Key, 66 Wis. 500, 505, 506, 29 N. W. 279, and cases there cited. Among the cases there cited is *Hart v.*Windsor, 12 M. & W. 68, which seems to be directly in point. See, also, *Kuhn v. Sol. Heavenrich Co.*115 Wis. 447, 91 N. W. 994. There is no dispute as to the amount of rent lost by the plaintiff by reason of the breach of covenants on the part of the defendants.

*By the Court.*— The judgment of the circuit court is affirmed.