majority">NAPTON, J.

The facts of this case were these : Walker leased to Seymour the Missouri Hotel in St. Louis for a year from the 1st April, 1844, and among other things, covenanted in the lease that he would have the stone house rough cast aftor the first month’s rent was received. This was not done, *420but at the end of the year, in accordance with another stipulation in the lease, a second lease was given to Seymour for two years more, and this contained the same covenant to rough cast the north end of the building. On the 17th April, 1845, Seymour commenced this action for the breach of the covenant in the first lease.

The pleadings in the case are fully set out in the statement drawn up by counsel, and I shall not repeat them. There was evidence before the jury of the damages likely to be occasioned by the want of the work covenanted for, and their verdict was for the plaintiff for $270. The court instructed the jury that the taking of the second lease did not affect the question they were called upon to determine. The whole case turns upon the point of law raised by this instruction.

The issue upon the replication to the first additional plea to the second count was immaterial, but the court is under no obligations to award a repleader unless the ends of justice require it. The instruction given settled the question of law for the plaintiff, and that question can as well be determined upon the instruction as upon the pleadings. It would be useless to send the case back if we concur with the Circuit Court in the second instruction given.

It is contended that the second lease gave the defendant until the expiration of the first month to set about repairing, and that this second covenant must be construed as a waiver of any damages sustained by reason of the first lease. We cannot assent to this reasoning. The fact that Seymour renewed his lease, with a new covenant to do the same work stipulated for in the first, might go to the jury as some evidence of the estimate placed by him on the extent of his damages, but it is not easy to construe such an act as a release or discharge. When the second lease had been taken, the covenant in the first was broken, and the right to damages fixed. This right might have been released or discharged, but the mere fact of taking another lease with another covenant to repair, did not produce this effect. We shall let the verdict stand. Judgment affirmed.

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