| Ill. | Nov 15, 1860
The qualification to the fifth instruction, asked by the defendant, was wrong. It told the jury that if they found that the defendant had agreed to pay for the repairs of the mill, then they should not allow rent during the suspension for the repairs. This is a misconstruction of the lease, or of the supposed subsequent agreement to pay for the repairs. The lease is in the ordinary form, and binds the lessee to pay the lessor rent during the whole term, no matter what might befall the premises. There is «then nothing in the lease to justify this qualification. Nor does it by any means follow that the rent should stop if the lessor had agreed to pay for the repairs., There is not a particle of proof that a word was ever said about the suspension of the rent.
If the damage to the mill was the result of accident, and without the fault of the lessee, then, by the terms of the lease, he was not bound to repair, nor was the lessor. The lessee was at liberty to make the repairs at his own cost, and then enjoy the premises beneficially to the end of his term, or he might let them lay idle to the end of the term and surrender them up in their damaged state, but he must pay rent the same as if the accident had not happened. And the lessor might agree to pay for the repairs for the sake of receiving them at the end of the term in their improved condition, but he was bound to pay no more than he agreed to pay for the repairs. He might, no doubt, in consideration of- the repairs, have agreed to suspend the rent as well as to pay for the repairs, but agreeing to do one was not an agreement to do both.
The court erred in qualifying the fifth instruction in the way it did. The proof of any agreement by the lessor to pay for the repairs is very slight indeed, if there is not an absolute want of any such proof, and we are not prepared to say that we should not reverse the judgment on that account, were there no other question in the case.
The judgment is reversed, and the cause remanded.
Judgment reversed,.