¶1Appellees rented to appellants a large hotel building for a term, commencing on the first day of September, 1877, and ending on the thirteenth day of December, 1878, for the sum of fifteen hundred dollars per year, payable in monthly installments.
¶2In the lease appellees covenanted to keep in good repair, at their, own expense, the roof of the hotel building so that it should not leak, and appellants, in consideration of the premises, covenanted to pay the rent. Appellants with the consent of appellees, sub-let the premises after occupying them until January, 1878. The monthly installments were all paid by appellants and the sub-lessees, except the months of July and August, and to recover the rent due for these two months this suit was brought. Appellants filed the general issue and several special pleas, to which special pleas appellee demurred, and the court below sustained the demurrer, and, as we think, properly. The case was then by agreement submitted to the court for trial without the intervention of a jury. On the trial the following question was asked by appellants of one of the witnesses : “You will now please state to the court what damages, if any, you have sustained by reason of the roof leaking?” Appellees objected to the question, and the court sustained the objection. In this we think the court erred. The witness should have been permitted to answer the question. After hearing the evidence, the court rendered a judgment in favor of appellees for two hundred and nine dollars and sixty-two cents, and costs of suit, from which judgment appellants appealed.
¶3The record shows that appellants took possession of the premises, and soon thereafter expended about seven hundred dollars in papering and otherwise improving the inside of the house, and the first rains in October nearly ruined the whole of it. The roof leaked badly every time it rained, and the water loosened the paper on the walls, and soiled the paint, wet the beds and carpets, and made the rooms unfit for guests. It leaked so badly that appellants were obliged to keep extra help, and it made their expenses so heavy that they could make no money. The evidence very heavily preponderated that the premises, in their bad condition, owing to the leaking of the roof, were not worth one-half of the rent agreed to be paid. Appellees contend that the court should not have allowed more than nominal damages as a deduction from the rent due, inasmuch as appellants, during the time they rented the premises to others, received from their sub-tenants the same rent they agreed to pay. Appellees broke their covenant, and 'for the breach of it appellants were entitled to recover all legitimate damages they sustained by the breach of the contract, and it does not lie in the mouth of appellees to say that they should escape all punishment for their want of good faith, because appellants received the same rent they paid during the time they did not themselves occupy the premises.
¶4We think the evidence shows that appellants were damaged to a greater amount than the two months’ rent sued for, and to the extent of that rent they should he allowed to recoup. The judgment should have been rendered in favor of appellants for costs of suit.
¶5Reversed and remanded.