But though the entire rent is not suspended because plaintiff remained in possession of the two upper stories of the building through her subtenant, it would seem that she is entitled to a pro rata abatement thereof. The authorities declare that where the tenant is actually evicted from a portion of the premises, the entire rent is suspended even though possession is retained of a parcel of the demise. The doctrine with *674respect to such cases is, that the covenant for quiet enjoyment requires the lessor to confer and protect all of the benefits of the lease to the tenant, for such is the consideration of the demise. The enjoyment of this consideration is a condition precedent to the payment of the rent reserved, and the lessor will not be permitted to take advantage of his own wrong, to the-end of apportioning and exacting a pro rata, or any other, part of the rent, for the portion of the premises continued to be occupied by the lessee. The rule as to this matter treats the actual eviction as a tort, which, of course, it is, and denies an apportionment of rent to the landlord because of the tortious aspect of his act involved. However, the principle thus reckoned with in those cases is surely without influence on the question of an abatement of rent in favor of the lessee who has been evicted, as this defendant, and stands wholly free from wrongful conduct. There is no .tortious feature presented here for the consideration of the court in so far as the defendant lessee is concerned, for, besides abandoning so much of the premises as were within her power‘to abandon, she sought to render possession of the whole to the lessor and served a notice on her subtenant, to that end, te quit. Defendant lessee sublet the two upper stories of the building to her subtenant, as was perfectly proper, for her lease from plaintiff stipulated that she might do so. By this sublease, defendant created the relation of landlord and tenant between herself and Dr. Johnson, the subtenant, for the full period of her term. Because of the peculiar construction of the building, the leaking roof and defective downspouts rendered untenantable that portion of the building only which defendant retained for her own occupancy. In other words, the roof and downspouts appertaining to the second and third stories were sufficient, and it was only the roof over the rear portion of the first story, which extended far beyond the second and third *675stories, that leaked. The question must Tbe determined, too, to some extent, in view of the subject-matter in contemplation between the parties at the time the lease was made between defendant and plaintiff. This lease contemplated that defendant should occupy the first floor as a store for the sale of ladies’ wearing apparel and that she might sublease the second and third stories to another. In these circumstances, it would seem that every precept of natural justice forbids the harsh application of the rule that a constructive eviction of a portion of the premises is not available unless an abandonment of the entire demise appears. While it is the duty of the courts to declare the law, it is their duty as well, in its proper application, to reckon with those fundamental principles of good conscience essential to attain a just result in the circumstances of the particular case, for, after all, such is the constant aim and purpose of the common law. It would seem a harsh application of the rule, indeed, to require this lessee to pay full rent for the storeroom from which she was constructively evicted.because of the lessor’s omission to repair the roof and downspouts, in accordance with his covenant, for the mere fact that she was unable to abandon and surrender possession of the entire premises. Especially is this true when we remember that the lease itself contemplated a subletting and distinct occupancy. There is no principle of the common law which inhibits a pro rata apportionment of the rent here, in favor of the lessee, for in no sense may she be placed in the attitude of seeking to avail herself of the benefits of a wrongful act on her part. On the other hand, every precept of natural justice suggests that an abatement of the rent should be available to her as for a partial failure of the consideration for the covenant under which she agreed to pay the rent reserved. Touching this matter, we believe that the principle reflected in Willard v. Tillman, 19 Wend. (N. Y.) 358, *676should control. It Is true that case did not present the question of an eviction, either actual or constructive, but nevertheless an apportionment of the rent was declared to point its proper solution. There, the tenant occupied, under a lease, three rooms in a building and a landing on a navigable canal, for which he agreed to pay ninety dollars per annum as rent “so long as he was permitted to occupy the premises. ’ ’ The three rooms were destroyed by fire, but the tenant continued in possession of the landing which was of some value to him. Ordinarily the tenant is not acquitted from the payment of rent though the demised building is destroyed by fire, but it was said in this case that, because of the peculiar wording of the covenant that he was to pay the rent so long as he was permitted to occupy the premises, the entire rent should abate, as the building was destroyed. The court accepted that View, but, notwithstanding, declared the entire rent should not abate, for the reason the tenant remained in possession of the landing. But it declared, too, that, in the circumstances of the case, there should be 'a pro rata abatement of the rent. An application of the prinicple of that case here would attain a'just result, for, obviously, defendant ought not to be required to pay the full rent under the lease, when, through plaintiff’s breach of the covenant to repair, the first story of the building was rendered untenantable. See, also, Taylor on Landlord & Tenant (9 Ed.), sec. 379, where the doctrine of Willard v. Tillman is incorporated in the text. We say this in view of the fact that defendant was authorized by plaintiff to make the sublease and was thereafter wholly unable to abandon and surrender the whole premises because of the obligation outstanding in favor of the subtenant. Furthermore, in the early case of McFadin v. Rippey, 8 Mo. 738, it appears our Supreme Court declared, in the case of constructive eviction from a portion of the premises, as by the landlord filling up the cellar under *677the house, that it was proper to abate a portion oft the rent and permit a recovery as on quantum meruH for use and occupation, it appearing that the tenant re; mained in possession of the residence above the cellar. [Touching this question, see, also, Tomlinson v. Day, 2 Brod. & Bing. 680; 2 Taylor, Landlord Tenant (9 Ed.), sec. 649.]