Waddell v. DeJet

76 Miss. 104 | Miss. | 1898

Whitfield, J.,

delivered the opinion of the court.

It is the duty of a court, in construing a contract, to place itself in the situation of the parties at the time the contract was made, and to ascertain their intention from the contract in the light of that situation, looking also to the subject-matter of the contract. So dealing with this contract, we think the clause £ £ damage by fire, wind or water excepted, ’ ’ means, in view of the further stipulation that Mrs. Waddell agreed “to make, at her own expense, all necessary repairs, and not to call on Mrs. DeJet for repairs,” extraordinary damage by fire, wind or water. This harmonizes with the succeeding stipulation that, in case of destruction by fire, wind or water, rent was to cease from that time. If the premises were destroyed by any of these agencies, rent was to cease, and the lessee was not to be liable for such damages—not liable to rebuild. This view is further borne out by the stipulation that the lessee was to return the premises in as good condition as they then were, except “ordinary wear and tear.” “Ordinary wear and tear ” would include any usual deterioration from the use of the premises-in the lapse of time—ten years, a long lease of such property. Extraordinary damage from fire, wind or water would be unusual, partial or total destruction.

The demurrer admitted all that was well pleaded in the bill, and that charged that the roof was decayed, and the rain coming through at the time of the lease, and in danger of fire and rain floods; that the breakwater, an absolute necessity to the existence even of the building—a ten-room tenement used as a boarding house—was wholly gone, and needed to be at once renewed; that the window frames were out; that the water of the gulf would wash away the bluff and the building during the lease if the breakwater were not put there, and that all these facts, showing the condition of the property, its peculiar situation, were well known to both parties at the time the lease was made, and that they dealt with it in its then condition, with reference to these known facts. Of course these facts are not to be looked to to add to or vary the terms of the written contract, but they may properly be looked to as showing the nature of the property, its situation and condition, at the time of the lease; that the court may look at the parties in the light of these facts, as thus circumstanced, in arriving at their intention, manifested by the contract made with reference to this property so conditioned. To hold otherwise would be to hold that this old woman, dealing thus with appellant’s agent about this building, then thus dismantled and in need of instant necessary repairs, and excusing herself from making them, and binding appellant to make them at her own expense, must stand by for ten years and see her property ruined for want of necessary repairs— repairs necessary to its very existence, necessary to keep it as it thus was, which very repairs appellant was bound, by the lease, to make. “Necessary repairs’’ must be held here to mean necessary to keep that property, situated as it was, in as good condition as it then was—the condition in which appellant agreed to return it—and these appellant must make or submit to a cancellation of the lease.

Affirmed.