#### Isaiah Warren *v.*The United States.

*On the Proofs.*

*The defendants enter into possession of a building belonging to the claimant as trustee, without his knowledge or consent. He afterwards executes a lease of the property to the defendants, they agreeing therein to pay a specified rent and to restore it in good condition. There is no provision in the lease to malee repairs. The defendants malee alterations in the building and claim to offset the sarnie against the rent.*

Where the government executes a lease with a fall knowledge of the condition of the building leased, and with no agreement that the lessor shall make repairs, it cannot make them at his expense and withhold the cost of the same from the rent.

*Mr. B. J. Atlcmson*for the claimant:

This suit is brought to recover compensation for rent of buildings situated in the city of» Wheeling, West Virginia, known as the “ Old Dominion Pork-house and Distillery,” from 6th March till 6th September, 1865, at the rate of $125 per month, $750; also for injuries to building and machinery, and for lumber, &c., used, $600; total amount claimed, $1,350.

About the 1st March, 1865, the necessities of the military service required buildings for quarters and for a g’eneral rendezvous for recruits, &c. Captain E. P. Hudson, of the Veteran Deserve Corps, and superintendent of recruiting sendee, United States Army, determined to take possession of the premises, which he did on the 6th March, 1865. A short time afterwards an agreement was made (on the 20th March, 1865) for renting the premises, and a written contract of lease was entered into for the same at a monthly rent of $125, the rent to be paid at *527tbe end of each month, or as soon thereafter as funds may be received for that purpose.

Captain Hudson occupied the premises as a rendezvous for recruits until 15th June, 1865, when he turned it over to Major B. S. Gardner, assistant quartermaster, who assumed charge, and continued to use it as quarters for return troops, until on or about September 6, 1865, when the military occupation ceased.

. It is respectfully submitted that the claimant is entitled to a judgment for the whole amount claimed.

*Mr. T. S. Talbot*(with whom was the *Assistant Attorney*General) for the defendants:

I. The claimant’s title to the premises terminated on the 17th day of August, 1865; and therefore no rent accruing after that date should be allowed to him.

II. No authorized contract to pay rent and no actual value of occupancy are proved in the case.

HI. The damages done to the property were repaid by the moneys spent by the United States in repairs.

Peck, J.,

delivered the opinion of the court:

The petitioner, a resident of Wheeling, West Virginia, represents that in the year 1865 he was regularly appointed by the court, pending certain judicial proceedings, a trustee, and in possession under that appointment of certain premises in Wheeling known as the “Old Dominion Pork-house and Distillery.” That about the 6th of March, 1865, the United States, being in need of buildings for quarters and as a general rendezvous for volunteers in the military service, took possession of the premises during his absence; that on his return to Wheeling an agreement was made for the lease of said premises to the United States, at the rental of one hundred and twenty-five dollars per month, which was reduced to writing and signed by Captain E. P. Hudson, of the Veteran Eeserve Corps, and superintendent of recruiting service, the premises to be returned in good order, &c.; the lease to be terminated at the pleasure of the Provost Marshal General of the United States. No objection was made to the lease by this or any other officer. The *528building was occupied from the 6th. of March to the 6th of September, 1865, a period of six months. The claimant alleges that damage was done to the buildings to the extent of six hundred dollars.

There is no dispute about the time the premises were occupied. The excuse for non-payment of rent is, that the premises were made better by the United States to the value of the rent. Of this there is not only no proof, but there is ample proof to the contrary.'

The building was erected for a distillery, and although it had not recently been occupied for that purpose, it is clearly proved that while the United States occupied it under the lease, the damage to the building, fixtures, and mechanical apparatus in it, lumber, &c., was six hundred dollars.

The building was taken possession of by the United States without the knowledge of the claimant, and of course without any understanding with him that the building was tenantable as a dwelling. The lease was subsequently executed with a full knowledge of the condition of the premises and their fitness for use. There is no evidence that repairs were to have been made by the lessor, or by the United States, at his expense.

A tenant who intrudes himself into the occupation of a building erected for a distillery, and uses it as a dwelling, ought not to complain if he does not find it in all respects adapted to his purposes. Nor should he be heard to complain of the consequences of his own trespass.

The building is shown to have been well worth the rent that the United States promised to pay for its use.

There is a large correspondence in the record from the War Department connected with this claim, but nothing which denies the contract or the occupation.

There was a court of inquiry held by officers appointed to investigate the use and occupation, the amount of repairs, damages done, &c., but they never reported their conclusions.

The controversy among the officers of the army was as to the fund out of which the rent and damages should be paid, some insisting that the quartermasters should pay, and some that the recruiting service should do so, and others that it should be distributed between these funds; by reason of these differ-*529enees it came to be asserted that no payment at all should be made.

We do not see any sufficient objection by any or all of these officers to prevent a recovery.

We direct a judgment for the full amount proved, viz: $1,350.