Mr. Justice Paxson
delivered the opinion of the court, November 15th 1880.
We think it was error to admit the evidence referred to in the first and second specifications. Under the agreement between the parties the plaintiff below had the right to enter upon the premises leased by the defendant and make the repairs in question. The defendant not only agreed to this in writing, but he further stipulated to accept a certain reduction of the rent “ as full compensation to him, or to his sub-tenants for any and all inconvenience or damage arising from, or caused or to be caused, by the work aforesaid, or by the past faulty condition of the building either to him or to his sub-tenant, or any of them.” The agreement further provided that “ the work shall be done forthwith, and as speedily finished as possible.” The action below was to recover rent alleged to be due under the lease, as reduced by the agreement of 18th October 1877. It is very clear the defendant could not set up the inconvenience and loss to his business resulting from the repairs to the property unless the completion thereof had been unreasonably delayed. Yet the evidence referred to was just such evidence as would have been proper had the plaintiff entered without right and made the repairs against the will of the defendant. In other words the defendant was allowed to prove the entire extent of the interference with his business by the repairs and the entire loss sustained by him instead of confining the inquiry to the damages caused by the delay. This was calculated to mislead the jury, and even if cured to some extent by the charge of the court, yet the whole matter was so hopelessly blended together by the evidence that it would require a jury of more than average intelligence to andve at an accurate conclusion. Indeed, if it be conceded that there was needless delay and a defence to that extent, it is not too much to say that there is not sufficient evidence in the case to base an intelligent verdict upon. The testimony in regard to the delay is extremely vague and unsatisfactory. Two or three witnesses do speak .of the repairs being unnecessarily delayed. Their opinion, however, was based upon the fact that there were days when no workmen were at the building. But they were not experts, not even mechanics, and they do not venture to say whether the delay was for a week or for a month. No competent builder who had inspected the building when the repairs were going on, or after it was completed, was called to testify that the work was unreasonably delayed.
The third and fourth assignments are also sustained. The learned judge refused to admit the evidence referred to in these specifications for the purpose of varying the written contract. Thus far he was right, as there was neither allegation nor proof of fraud, accident or mistake. But he did admit it as evidence of the time necessary to complete the repairs. In this he was as clearly wrong. The evidence did not come up to the measure of such proof. It was merely the opinion of the plaintiff that the repairs could be completed within three weeks. But being a mere opinion he refused to bind himself to complete them Avithin that time. The evidence shows that the opinion was a mistaken one. The repairs were found to be more extended than was anticipated. The building was in a dangerous condition; it had swayed laterally ; it was necessary to take out the old girders and columns and replace them with new ones of iron, and to take out several floors more than was contemplated, and replace them with new ones. If it had been important to show that at, the time of the agreement the plaintiff believed the repairs could be done in three weeks the evidence would have been proper. But it was not important to do so, nor would it have been relevant. It would have thrown no light upon the question of unnecessary delay.
The affidavit referred to in the fifth specification was properly admitted. That it was not made by the plaintiff, but by his agent, may weaken the effect of it with the jury. But it was made for the plaintiff, presumably with his knowledge, and he has had the benefit of it. If it served him á good turn there I see no reason why it should not be used against him here. It was not the mere affidavit of one who could be called as a Avitness ; it Avas a defence set up by the plaintiff to a suit against him by the contractor for these very repairs.
Judgment reversed, and a venire de novo awarded.