5 Barb. 666 | N.Y. Sup. Ct. | 1849
The most important question in this case arises upon the stipulation in the lease, by Avhich the defendants bound themselves at the expiration of the lease to surrender up possession of the premises in the same condition they were in at the time of making the lease, natural wear and tear excepted. Except in one case in the court of appeals of Virginia, I can find no direct adjudication upon this precise question. Substantially the same point was presented to our su
It was at first doubted, under the statute of 6 Elizabeth, as will be seen by reference to the authorities cited, whether an express covenant to repair bound the tenant to make good losses by accidental fires. And the practice of inserting a clause excepting such losses from the operation of the covenant was at first adopted by conveyancers in England, on account of this doubt, and to avoid any question about it, and not because the covenant without the exception was Understood clearly to extend to such casualties. It is now however settled, that when the lease contains, on the part of the lessee, an express covenant to uphold and repair the premises, he is liable to make good such losses. But in all the adjudicated cases where this liability has been held to attach to the lessee, he has entered into an express covenant to repair; and in all those cases in which the same lease has also contained a covenant to surrender the premises in the same condition, or in as good condition, as at the commencement of the term, this covenant has not been noticed by the court as important, but the covenant to repair has been made expressly the basis of the recovery. In some early cases, where the lease contained no covenant on either side about replacing buildings casually destroyed, courts of equity restrained the lessor from collecting rent after such losses, or apportioned the rents according to the diminished value
The intention of the parties prevails over the literal terms of an agreement, when its language is not in accordance with their actual design. To ascertain this intent, we are to look at the situation of the parties ; the subject matter of the agreement ; the object that the parties had in view and intended, at the time, to accomplish. A construction should be avoided, if it can be done consistently with the tenor of the agreement, which will be unreasonable or unequal. (14 Verm. Rep. 311.) And that construction which is most obviously just is to be favored. (4 Humph. 468.)
The question in the present case comes to this, whether the defendants are liable on their agreements, to the same extent as though they had covenanted to repair and uphold the premises during the time. “Upon a covenant by the lessee to keep in repair and leave the premises in the same state as when he found them, he is merely required to use his best endeavors to keep them in the same tenantable repair. Natural and unavoidable decay is no breach of the covenant; but a covenant to repair generally requires him to uphold the buildings.” (Com. L. & T. 202.) “ If one covenant to keep and leave a house in the same or as good plight as it was at the making of the lease, in this case the ordinary .and natural decay is no breach of the covenant. But the covenantor is bound to do his best to keep it in the same plight, and therefore is bound to keep it covered,” &c. (Shep. Touch. 169.) The same book also lays
In Pollard v. Shaffer, (1 Dallas, 210,) the lessee covenanted
In Lindsey v. Gordon and others, (1 Shepley, 60,) the action was for refusing to deliver to the plaintiff a vessel for which, upon a sale to them, he had received the notes of the defendants. They agreed “ to keep said vessel in good order, and to deliver her up to said Lindsey, or his order, on- failure by us to pay the notes aforesaid, or any one of them.” The vessel was lost at sea. And the court said the vessel being lost without the defendants’ fault, the re-delivery was excused, and no action lay against them therefor.
The construction applicable to covenants like most of those before the courts in the various cases cited, has long beeii settled and understood. But when the questions there decided were first presented, I know of no argument that can now be used against the defendants in this case, which would not have applied then with equal if not greater force. The difficulty is not that the principle is now for the first time asserted, but that we are now for the first time called on to apply it tó a casé like the present.
In looking at all the circumstances of the case, I am satisfied that neither party contemplated, at the time the lease was executed, that the tenants were to rebuild the erections, in case of their destruction by fire. This liability is an extraordinary one for the lessee to assume, and when it is intended," it is usually expressed in terms not susceptible of misconstrudtion. The covenant to repair has been in use for centuries; its appropriate office and design is understood, riot only by lawyers but laymen, and its omission is a strong reason for supposing that neither party intended, by other provisions, to' assumé or impose the obligations which it creates. The covenant to repair has always been regarded &s imposing a more extended liability, ’ than the covenant to surrender the premises in as good condition as found. And the insertion of the latter covenant has never been considered as superseding the necessity of the former
Again; the language here used is that the said premises shall be surrendered in the same condition—not in as good a plight or condition. I am not about to attempt a subtle distinction between the legal signification of these terms; for where the intention is clear the obligation imposed would probably be the same, whichever phrase was used. But when we are trying to present to our minds the views that occupied those of the parties when the contract was made, the form of expression used by them, may in some degree aid us in the attempt. Had they intended to provide for such a casualty as happened, and. not merely for the protection and preservation of the building then standing, it would have been much more natural to provide for leaving the premises in as good a condition, than for surrendering them in the same condition. This form of expression tends to show that the contingency of a destruction by fire was absent altogether from the minds of the contracting parties; or, if it was thought of, that a stipulation in relation to it was intentionally omitted. It is not claimed that this is a controlling circumstance in the case, but with others it is worthy-of consideration in our inquiry after the object which the insertion of this stipulation in the lease was proposed to secure.
We are referred to the rule that the terms of a contract are to be taken most strongly against the covenantor, and are told that the exception in the case of ordinary wear and tear, should be interpreted as excluding an intention to make any other exception. That such have been laid down as rules of construction is not to be denied. The cases I have referred to show how easily and how frequently these rules have been departed from, and that their influence is allowed, when it leads to a just and equitable construction. In my opinion, they should never be allowed to lead the court to an inequitable or harsh one. But the answer to the argument is, that these rules are subordinate to principles; that the intention of the parties is to be sought after and effectuated by the court.
I do not propose to examine, in detail, the cases cited by the plaintiff’s counsel to sustain his position. So far as they are claimed to bear directly on the question they are all, as before remarked, cases where the lessor had covenanted to repair, and are for this reason distinguishable from this case. Shepherd’s Touchstone, 173, has also been cited as an authority for holding the defendants liable. It is there said, “ If one covenant to
It has been decided by the courts of the state of Tennessee, where A. covenanted to deliver B. his growing crop of cotton “in good order put up in bags,” that A. was not bound to deliver the cotton free from stains, and of a fair quality. He was only bound to. use his utmost care in putting, ginning,, and baling it. And that he did not guaranty against the casualties of the season. (Trigg v. Hally, 4 Humph. 493.) Here was an express contract to deliver in good order, which was not according to its terms, performed. Yet the court, looking at the intent of the parties, hold that the real understanding was that A. should use his utmost care in preserving the property, and was not liable for casualties. A contract to deliver cotton, and one to deliver the possession of a house, are alike in character, and if a guaranty against casualties is not implied in one, upon what principle can it be implied in the other h If the cotton had been destroyed by flood or Are, without the defendant’s fault, I am unable to, see why, upon the principle of that case, he would not have had equally a defence.
The hirer of a slave covenanted to re-deliver him to the bailor at the end of the term. During the term the bailee moderately corrected him for misconduct; upon which the slave ran away,
In Browning v. Hanford, (5 Hill, 596,) a question somewhat like the one before us was presented to the court, though not decided. Property had been levied on by a sheriff, and delivered to one Ellsworth, from whom he took a receipt, and an express agreement to re-deliver it on demand or pay $2000. The property was destroyed by fire while in Ellsworth’s possession. Judge Nelson and Judge Cowen differed on the question of the receiptor’s liability. Upon this point Judge Bronson gave no opinion. The case is not therefore cited as authority, but the reasoning of Mr. Justice Nelson is referred to as favoring the
As to that portion of the property not destroyed, but removed from the premises, I think the plaintiff is entitled to recover. The objection that a breach for this cause was not assigned in the declaration seems to me not well taken. This property was a part of the premises demised to the defendant, and was in existence at the end of the term, or at least was fenioved by the defendants before. Nothing was shown to excuse them from returning it. I do not understand that the plaintiff is driven (as has been contended) to his action of trover for it. He might maintain such an action probably; but I think he is at
The plaintiff must have judgment for the value of the property which the defendants have removed and not returned, which the jury found to be worth $275
Mullett, P. J. concurred.
Marvin, J. dissented.