Baldwin, J.
The plaintiff in this action sued for rent upon a written lease. The defendants, admitting in their answer all the allegations of the complaint to he true, pleaded in avoidance that the plaintiff, by reason of fraud, false warranty, and breach of an agreement to repair, was liable to Mrs. Fowler, the lessee, in damages exceeding the rent accrued ; and she added, by way of counterclaim, a demand for a still larger sum, founded on the same grounds. The plaintiff replied by what was substantially a general denial, and the verdict finds the issue in his favor, and gives him the full amount of the rent in arrear.
Several errors are apparent on the record; but we think none of them are such as to require a reversal of the judgment.
The pleadings were such that the burden of proof rested on the defendants, and they accordingly opened and closed the case.
The counterclaim joined claims sounding in tort with claims founded in contract, but all connected with the transaction which was the subject of the plaintiff’s action. He had let a house to Mrs. Fowler, knowing that she intended to sublet rooms in it to lodgers, and with the privilege of so doing. She claimed that the heating apparatus was so defective that the rooms could not be properly warmed in cold weather, whereby she had lost their use up to the time of trial, and that for such loss the plaintiff was responsible. Had she proved her charges of fraud, false warranty, and agreement to repair, she would have been entitled to the resulting damages, computed to the time of trial. Her counterclaim placed her on the same footing, in this respect, as if she had been the plaintiff in an independent action. She had a right to prove, and was bound to prove, her entire damages. Burritt v. Belfy, 47 Conn., 323; General Statutes, § 1050. Nor should she have been restricted in showing the defects in the heating apparatus, to its condition prior to January 1st. As long as it continued defective, and the rooms were thus left in sufficiently heated, her cause of damage was a continuing one. The lease was worth less up [564]*564to the time of trial than it would have been, had the heating apparatus been adequate, and the amount of this difference between what it was worth for her purposes, with cold rooms, and what it would have been worth, with rooms properly heated, would represent her loss. The Court of Common Pleas therefore erred in restricting her proof of the condition of the house and of loss of rents to the period before January 1st.
It erred also in limiting too narrowly the mode of proof. The measure of damages, assuming her claims to be well founded, would be the rental value of the rooms, for the purpose of letting which she had hired the house, which she could not let, on account of the lack of proper heat in them. Myers v. Burns, 35 N. Y., 269. Such loss of the use of these rooms arising from her inability to let them, could be shown otherwise than by evidence of applications actually made to her, and withdrawn on this account. If the rooms were untenantable in cold weather, she was not bound to seek for lodgers during the winter, or to show that applicants for lodgings had examined and declined to take them.
But the question of damages became immaterial when she failed to establish the claims upon which her right of recovery depended. The admissions in her pleadings made her the “actor” in the suit, as to her answer as well as-her counterclaim. The issue was joined upon her claims, not upon the plaintiff’s ; and it was found against her. Had the jury found that the plaintiff was guilty of fraud, or chargeable with a false warranty, or breach of an agreement to repair, it would have been their duty to return, and we muse assume that they would have returned, a verdict in favor of the lessee, upon the counterclaim, even though they had found only nominal damages. Their verdict, as given, is in favor of the plaintiff both on answer and counterclaim, and as the subject of each was identical, establishes the invalidity of each of the charges made by the lessee. As, therefore, no wrong was done, and no contract broken by the plaintiff, the evidence introduced or offered in support of Mrs. Fowler’s claim for damages consequent on such wrong [565]*565or breach of contract, was unimportant, and she can have suffered no injury by the exclusion of that in respect to which the Court of Common Pleas was in error. Had the claims been presented simply by an answer, it would have been possible for the jury, though believing them to be well founded, to return a verdict against her, for lack of evidence of damages ; but as they were also brought up by her counterclaim, the verdict upon that determines the ground upon which they proceeded, and shows that the decisive facts, upon which her right to damages rested, were found against her.
The court properly instructed the jury that General Statutes, § 2969, which excuses a tenant from paying rent, though continuing his occupation, if the tenement is, without his fault or neglect, so injured as to be unfit for occupancy, did not apply to the case of an injury occurring from the want of ordinary repairs. This was in accordance with the view of this statute taken by this court in Hatch v. Stamper, 42 Conn., 28, and the change in its phraseology in the Revision of 1875, was evidently made simply for the sake of brevity, and did not affect its legal construction.
The refusal to allow an amendment of the answer upon the trial, in order to let in evidence of inconvenience to Mrs. Fowler personally, by the defects in the heating apparatus, was a matter resting in the discretion of the trial court. Rule III., under the Practice Act, § 6, (Practice Book, p. 14) declaring that “ in all cases of any material variance between allegation and proof, an amendment shall be permitted at any stage of the trial,” must be read in connection with the provisions of General Statutes, § 1027, that “ all courts shall have power to restrain the amendment and alteration of the pleadings, so far as may be necessary to compel the parties to join issue in a reasonable time for trial.” An amendment of the pleadings, when the case is on trial, and the evidence partly in, is never a matter of absolute right.
There was no error in striking out the testimony of Mrs. Fowler, as to her conversation with the plaintiff’s agent relative to the execution of the guaranty. Not only was the [566]*566conversation, as stated, too indefinite, on each side, to affect the obligation which the guaranty, as afterwards executed, imports, but the defence of want of consideration was not open to either of the defendants upon the pleadings in the case. The plaintiff set out the lease and guaranty in his complaint and alleged that the defendant Kebabian signed the latter for value received. The guaranty itself recites that it is given “ for and in consideration of the letting of the premises within described, and for value received.” The joint answer of the defendants begins thus: “The defendants admit the truth of the matters contained in the plaintiff’s complaint, but in avoidance of the -same set up the following facts.” Four separate defenses are then pleaded, the third of which is that the guaranty was signed without consideration. The complaint, however, had alleged that it was signed for value received, and this and every other of the plaintiff’s averments had been admitted to be true, before the third defense was set up. The latter was therefore void for repugnancy, and no evidence was admissible in its support. Gould on Pleading, Chap. III., § 168.
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Baldwin, J.
The plaintiff in this action sued for rent upon a written lease. The defendants, admitting in their answer all the allegations of the complaint to he true, pleaded in avoidance that the plaintiff, by reason of fraud, false warranty, and breach of an agreement to repair, was liable to Mrs. Fowler, the lessee, in damages exceeding the rent accrued ; and she added, by way of counterclaim, a demand for a still larger sum, founded on the same grounds. The plaintiff replied by what was substantially a general denial, and the verdict finds the issue in his favor, and gives him the full amount of the rent in arrear.
Several errors are apparent on the record; but we think none of them are such as to require a reversal of the judgment.
The pleadings were such that the burden of proof rested on the defendants, and they accordingly opened and closed the case.
The counterclaim joined claims sounding in tort with claims founded in contract, but all connected with the transaction which was the subject of the plaintiff’s action. He had let a house to Mrs. Fowler, knowing that she intended to sublet rooms in it to lodgers, and with the privilege of so doing. She claimed that the heating apparatus was so defective that the rooms could not be properly warmed in cold weather, whereby she had lost their use up to the time of trial, and that for such loss the plaintiff was responsible. Had she proved her charges of fraud, false warranty, and agreement to repair, she would have been entitled to the resulting damages, computed to the time of trial. Her counterclaim placed her on the same footing, in this respect, as if she had been the plaintiff in an independent action. She had a right to prove, and was bound to prove, her entire damages. Burritt v. Belfy, 47 Conn., 323; General Statutes, § 1050. Nor should she have been restricted in showing the defects in the heating apparatus, to its condition prior to January 1st. As long as it continued defective, and the rooms were thus left in sufficiently heated, her cause of damage was a continuing one. The lease was worth less up [564]*564to the time of trial than it would have been, had the heating apparatus been adequate, and the amount of this difference between what it was worth for her purposes, with cold rooms, and what it would have been worth, with rooms properly heated, would represent her loss. The Court of Common Pleas therefore erred in restricting her proof of the condition of the house and of loss of rents to the period before January 1st.
It erred also in limiting too narrowly the mode of proof. The measure of damages, assuming her claims to be well founded, would be the rental value of the rooms, for the purpose of letting which she had hired the house, which she could not let, on account of the lack of proper heat in them. Myers v. Burns, 35 N. Y., 269. Such loss of the use of these rooms arising from her inability to let them, could be shown otherwise than by evidence of applications actually made to her, and withdrawn on this account. If the rooms were untenantable in cold weather, she was not bound to seek for lodgers during the winter, or to show that applicants for lodgings had examined and declined to take them.
But the question of damages became immaterial when she failed to establish the claims upon which her right of recovery depended. The admissions in her pleadings made her the “actor” in the suit, as to her answer as well as-her counterclaim. The issue was joined upon her claims, not upon the plaintiff’s ; and it was found against her. Had the jury found that the plaintiff was guilty of fraud, or chargeable with a false warranty, or breach of an agreement to repair, it would have been their duty to return, and we muse assume that they would have returned, a verdict in favor of the lessee, upon the counterclaim, even though they had found only nominal damages. Their verdict, as given, is in favor of the plaintiff both on answer and counterclaim, and as the subject of each was identical, establishes the invalidity of each of the charges made by the lessee. As, therefore, no wrong was done, and no contract broken by the plaintiff, the evidence introduced or offered in support of Mrs. Fowler’s claim for damages consequent on such wrong [565]*565or breach of contract, was unimportant, and she can have suffered no injury by the exclusion of that in respect to which the Court of Common Pleas was in error. Had the claims been presented simply by an answer, it would have been possible for the jury, though believing them to be well founded, to return a verdict against her, for lack of evidence of damages ; but as they were also brought up by her counterclaim, the verdict upon that determines the ground upon which they proceeded, and shows that the decisive facts, upon which her right to damages rested, were found against her.
The court properly instructed the jury that General Statutes, § 2969, which excuses a tenant from paying rent, though continuing his occupation, if the tenement is, without his fault or neglect, so injured as to be unfit for occupancy, did not apply to the case of an injury occurring from the want of ordinary repairs. This was in accordance with the view of this statute taken by this court in Hatch v. Stamper, 42 Conn., 28, and the change in its phraseology in the Revision of 1875, was evidently made simply for the sake of brevity, and did not affect its legal construction.
The refusal to allow an amendment of the answer upon the trial, in order to let in evidence of inconvenience to Mrs. Fowler personally, by the defects in the heating apparatus, was a matter resting in the discretion of the trial court. Rule III., under the Practice Act, § 6, (Practice Book, p. 14) declaring that “ in all cases of any material variance between allegation and proof, an amendment shall be permitted at any stage of the trial,” must be read in connection with the provisions of General Statutes, § 1027, that “ all courts shall have power to restrain the amendment and alteration of the pleadings, so far as may be necessary to compel the parties to join issue in a reasonable time for trial.” An amendment of the pleadings, when the case is on trial, and the evidence partly in, is never a matter of absolute right.
There was no error in striking out the testimony of Mrs. Fowler, as to her conversation with the plaintiff’s agent relative to the execution of the guaranty. Not only was the [566]*566conversation, as stated, too indefinite, on each side, to affect the obligation which the guaranty, as afterwards executed, imports, but the defence of want of consideration was not open to either of the defendants upon the pleadings in the case. The plaintiff set out the lease and guaranty in his complaint and alleged that the defendant Kebabian signed the latter for value received. The guaranty itself recites that it is given “ for and in consideration of the letting of the premises within described, and for value received.” The joint answer of the defendants begins thus: “The defendants admit the truth of the matters contained in the plaintiff’s complaint, but in avoidance of the -same set up the following facts.” Four separate defenses are then pleaded, the third of which is that the guaranty was signed without consideration. The complaint, however, had alleged that it was signed for value received, and this and every other of the plaintiff’s averments had been admitted to be true, before the third defense was set up. The latter was therefore void for repugnancy, and no evidence was admissible in its support. Gould on Pleading, Chap. III., § 168.
In support of the fourth defense, the court was requested to instruct the jury that they were at liberty to infer that the plaintiff had agreed to make all necessary repairs, from the clause in the lease, “ Said premises shall be at all times open to the inspection of said lessor or his agents, to applicants for purchase or lease, and for necessary repairs,” taken in connection with the fact that the plaintiff had made all repairs which had been requested, except that he did. not repair the steam heater so that it would heat the house, and the further fact that no claim was made that the lessee should make the repairs. The court gave this instruction, adding that the word “ repairs ” meant ordinary repairs, but would not include the substitution of one system of heating for another, or a new heater unless the old one was worn out. The defendants complain of this addition, but, in our opinion, the charge, upon these points, was much too favorable to them. The lease contained no express agreement to repair, and the jury were not at liberty to read such an [567]*567agreement into it by the aid of the reservation to the lessor of a right of entry to make necessary repairs. Such a right is necessary for his protection, should an occasion arise for extraordinary repairs, and reserving it, in words broad enough to cover also the case of ordinary repairs, could not oblige him to exercise it in respect to either. The only other reference to repairs made in the lease is in the clause requiring the lessee “ to keep in repair all plumbing, caused by freezing or careless use or misuse of the same.” The term was to commence September 1st, 1893, and the lease was executed August 30th. The fourth defense set up that on or about the time of its execution the plaintiff agreed with the lessee that he would make all necessary repairs so that the house would be suitable for the purposes of a lodging-house keeper, and that she signed it in reliance upon this agreement. The demurrer which was interposed to this defense should have been sustained, bio parol agreement could be thus set up to enlarge the stipulations in the lease. Osborne v. Taylor, 58 Conn., 439.
It is claimed by the defendants that the court, in recapitulating the evidence to the jury, did not state correctly the testimony of one of the witnesses. If so, the jury before whom he gave his evidence, can hardly have been misled by it. The duty of recollecting and weighing the evidence belongs to them. It is enough, however, to say, with regard to this exception, that it is not supported by the finding, in which no part of the testimony of the witness in question is given or described.
The Court of Common Pleas committed no errors which have prejudiced the defendants, and a new trial is denied.
In this opinion the other judges concurred.