124 Ky. 739 | Ky. Ct. App. | 1907
Opinion of the Court by
Reversing.
In- February, 1903, tbe appellants leased for 23 months, from tbe Security Trust & Safety Vault Company, of Lexington, as trustee of appellee, a lot in tbe city of Lexington, known as “Scott’s Factory,” upon wbicb there was located four buildings — two designated as hackling bouses, and two as warehouses. Appellants agreed to pay as rent for tbe premises
.The question to be considered is: Is a tenant entitled to an abatement of the rent he contracted to pay, if the buildings or .any of them on the leased premises are destroyed by fire or other cause without fault or neglect up-on the part of the tenant ? Previous to the enactment of section 2297 of the Kentucky Statutes of 1903, it was the rule in this State that a tenant, in the absence of a contract to the contrary, was bound to p-ay the rent for the term, although the premises might be destroyed by inevitable casualty, and without his fault or neglect. Helburn v. Mofford, 7 Bush, 169. To- relieve tenants from this harsh and unreasonable rule of the common law, the Legislature in 1893 enacted what is now section 2297 of the Kentucky Statutes of 1903, providing that, “unless the contrary be expressly provided for in the writing, no agreement of a lessee that he will repair, or leave the premises in repair, shall have the effect of binding him' to erect similar buildings, if without his fault or neglect the same may be destroyed by fire or other casualty, nor shall a tenant, unless he otherwise con
In this view we are unable to concur. The purpose of the statute was to change .the rule of law in force before its passage. It was designed to protect the tenant from the operation of a law that imposed upon him an unreasonable burden,"and it should be so interpreted as to fairly carry out the intention of its enactment. If the construction contended for by appellee should prevail, the tenant who leased for a term a group of five buildings, equally useful and valuable to him, would be required to pay the rent stipulated in the •contract, although four of the buildings were destroyed by inevitable casualty the day after the rental contract was entered into. To put it in another way: The statute would be limited in its operation to cases where all of the buildings leased were destroyed, and would afford no protection to the tenant in any other state of case, however serious the loss sustained by him might be. This construction would virtually destroy the usefulness of the statute, or so impair it that it would afford little benefit or protection to the
The lease provides that, if the premises are rendered untenantable by fire or unavoidable accident, the lessee may surrender and cancel the lease; and it is contended for appellee that the statute has no application to this case, hut the rights of the parties are fixed and determined by the terms of the lease. We do not so construe the clause in question. If the premises had been rendered untenantable, then under the provisions of the lease the lessee had the option of surrendering the premises and having the lease canceled. But the lease does not provide for a condition of affairs involving a partial destruction of the premises, or such an injury to them as would render them less valuable to the lessee without being untenantable. The answer, to which a demurrer,was sustained, avers that the destruction of the building did not render the premises untenantable, and, as the lease does not provide for the contingency that actually happened, it follows that the statute is applicable.
Wherefore, the judgment of the lower court is reversed, with directions to proceed in conformity with this opinion.
Petition for rehearing by appellee overruled.