¶1So far as the defendant’s claim to defeat the payment of rent during the period of his occupancy of the premises or as a basis fordamages is predicated upon the fact that another tenant of plaintiff furnished to his patrons a certain class of music which at times was quite out of harmony with the music being played in defendant’s theater, no sufficient showing of responsibility on the part of the plaintiff for such situation has been presented so as to make plaintiff in any wise liable.
¶2The odor with which nature has so bountifully endowed the onion had been escaping from the basement into the theater premises prior to defendant’s taking possession thereof, as could then have been discovered by him. He first discovered it in about two weeks after taking possession on January 1st. In spite of that condition, so early brought to his attention, he continued to pay rent on said premises according to the lease and at the specified rate until August 1st. During this period he leased to others the same premises at a greater rental rate than that which he was paying, and after such subtenants gave up their lease, finding it an . unprofitable venture, he used the theater himself. After he had stopped paying the rent in August he again opened the theater in October for a week and then remained in possession thereof until the notice to vacate was served on him. *280On November 5th he was notified that his failure to pay rent was being considered' a violation of the lease. He nevertheless elected to remain-there, and did pay, after such notice, two instalments on the rent in December and January of $100 each.
¶3■ ■ Under the facts and circumstances the trial court was correct in holding that there was no constructive eviction, either partial or whole, by the landlord of the.defendant as tenant. His remaining in possession; his unqualified payment of rent up to the 1st of August, 1917, must be considered to have been a- waiver of any rights he then might have had to treat this condition, if chargeable to plaintiff, as a breach of the covenant of the lease.
¶4■ Neither is there satisfactory proof that the. substantial failure of defendant’s business venture was the result of these odors escaping into his theater premises. -
¶5It' follows that the trial court was right -in- dismissing defendant’s counterclaim and directing judgment-for the amount of the unpaid rent.
¶6By the Court. — Judgment affirmed.