85 Ala. 99 | Ala. | 1887
The plaintiff leased to the defendants a building on Commerce street in the city of Montgomery, “for occupation as a grocery store and not otherwise,” for one year from the first day of October, 1886, at a rental of one thousand dollars, payable in equal monthly installments. Plaintiff brings the suit to recover the installments due on the first day of March, April and May, respectively, 1887. The defendants seek to avoid the payment of the rent, in consequence of a fire which occurred November 29, 1886, and so damaged the leased building as to render it unfit for the purposes for which it was leased, in connection with the entry of the plaintiff after the fire to make repairs. The record presents only questions of law arising on facts admitted by both parties. The lease, which is in writing, contains an express covenant to pay rent for the term, and contains no stipulation for the cessation of the rent in the event the building is destroyed, nor any covenant that the lessor shall rebuild or repair.
The settled rule is, that a lessee of premises, destroyed during the term by unavoidable accident, is not relieved from an express promise or covenant to pay rent, unless he protects himself by a stipulation that the rent shall cease in such event, or unless the lessor covenants to rebuild or re.pair, or unless the destruction is of the entire subject-matter of the lease, so that nothing remains capable of being held or enjoyed, which operates a dissolution of the tenancy. Chamberlain v. Godfrey, 50 Ala. 530; Warren v. Wagner, 75 Ala. 188. The destruction was not entire. Only a portion of the building was damaged. The defendants remained in possession of, and enjoyed that part of the building which was not destroyed, keeping a small portion of their goods therein. The plaintiff was entitled to recover, unless some available defense exists, other than the partial destruction of the building.
The question, however, is not necessarily presented by the record, which renders it unnecessary for us to consider it, or to express any opinion as to which is the sounder and better rule. The admitted facts are, that plaintiff only entered for the purpose of repairing the damaged part of the building, and that he so entered with the knowledge and consent of defendants, who resumed possession of the entire building as soon as the repairs were finished. An eviction is, in its nature, wrongful. There can be no eviction, which will operate to suspend the rent, without agreement, express or implied, where it is with the assent of the lessee, for a specified purpose, and temporary in its duration, and is not by the assertion of a superior claim or right. The entry of, the plaintiff, with the consent of the tenant, for the purpose of repairing, in order to render the premises more convenient and beneficial for his use and enjoyment, does not amount to an eviction. — Peterson v. Edmunson, 5 Harring. 378.
But, it is further insisted, that the entry of plaintiff with the assent of defendants was the equivalent of a rescission of the rental contract; and Magaw v. Lambert, 3 Penn. St. 444, is cited by counsel as sustaining this proposition, where it is said: “If the landlord took possession of the ruins for the purpose of rebuilding, without the consent of the tenant, it was an eviction; if with his assent, it was a rescission of the lease; and in either case the rent was suspended.” In that
Affirmed.