Rhone v. Gale

12 Minn. 54 | Minn. | 1866

By the Oov/rt

McMillan, J.

The complaint in this action distinctly avers that on the 15th of April, 1865, the plaintiff was the owner of a certain wooden building, the locality of which is stated, and the mode of acquiring title by the plaintiff ; that on that day he leased the two lower front rooms of the building to defendants, by a written lease duly executed bearing-date the 15th of April, 1865, for the term of two years aud a half, commencing at said 15th of April, 1865, &c., and that said lease was duly delivered to said defendants, and they took possession of said leased premises thereunder. This is a sufficient averment of the' delivery of the lease and possession of the premises on the 15th of April. In the absence of any evidence to the contrary, where a written lease is to take effect id praesenU, and possession under the lease is averred, the prima faeie presumption is that both the instrument and possession of the premises were delivered on the day of the date of the lease. There is a distinct averment of ownership of the building by the plaintiff at the date of the lease, which will be presumed to continue until the contrary is affirmatively shown. The complaint also avers that the defendants as rent of the premises, and as one of the conditions of said lease, and in consideration thereof, by and in said lease were to, and agreed to procure for the benefit off the plaintiff, an insurance of seven hundred dollars on the building, in which said rooms were situated, and to keep the same so insured during the term of said lease, said insurance by the terms of said written lease to be effected as soon as the 18th day of April, 1865, in a respectable and responsible company. It would seem to be *59hypercritical to give a construction to this language which would exclude an insurance against loss by fire, or declare' it too uncertain to be enforced for any purpose. If the agreement of the defendants had been only to effect an insurance on the premises by the 18th of April, 1865, there might be force in the objection that the defendants were not liable under this agreement for a loss occuring by the destruction of the building on the 20th of April, since, notwithstanding the defendants’ breach of their agreement, the plaintiff might have secured the insurance himself. But here the agreement is to procure an insurance on the building, and l&eep it msiwed during the term of said lease. The neglect of the defendants to insure as soon as the 18th of April, did not relieve them from the duty of insuring the building after that time, and keeping it insured according to the agreement. It was their duty under this agreement to do whatever was necessary to be done, at any time during the term, to keep the premises insured, and the plaintiff had a right to. rely upon their performance. The proper measure of damages in the case is a question which will be properly determined hereafter.

The order overruling the demurrer is affirmed.

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