50 Neb. 251 | Neb. | 1897
Lead Opinion
On the 1st day of November, 1894, Gurdon W. Wattles and F. L. Cotton entered into an agreement in writing in and by which Wattles leased to Cotton for five years from said date the east one-half of the southwest quarter of the northwest quarter of section 1, township 15 north and range thirteen (13) west of the 6th P. M., “together with the buildings situated thereon.” A rent of $6,000 was reserved, payable in 60 installments of $100 each. The first installment was paid at the date of the execution of the lease and one installment fell due on the first day of each month thereafter. In the lease, Cotton covenanted as follows: “That at the expiration of the term above granted * * * he will quietly and peaceably yield up possession of said premises * * in as good condition as the same were when entered upon, ordinary wear or damage by fire excepted. * * * It is understood and agreed that the buildings on the above described property have been placed in good repair by [the lessor] and shall be kept in the same condition by [the lessee] during the term of this lease, natural decay and wear and tear excepted.” Cotton assigned his interest in this lease to the South Omaha Ice & Coal Company, hereinafter called lessee, which took possession of the leased premises and began using the same for the purposes for which they were leased; that is to say, for harvesting ice formed on the waters on said leased lands and storing such ice in the buildings thereon. The rent reserved was paid up to the 1st day of September,1896. On the 22d day of August of said year the buildings on the leased premises “were destroyed and rendered entirely valueless by a violent wind storm or hurricane.” Notwithstanding the destruction of the ice houses, the lessor claimed that he was entitled to collect the rent reserved in the lease accruing subsequent to the destruction of the buildings; that he was under no obligation to rebuild the destroyed ice houses, but that the lessee was bound to re
Tbis case should be treated in all respects as though it was an ordinary action at law by the lessor to recover
The earliest American case which we have been able to find, which supports the contention under consideration, is Phillips v. Stevens, 16 Mass., 237, decided in 1819. The lessee covenanted that he “would keep in repair, support and maintain all and singular the fences and buildings, saving and excepting the natural decay of the same, as should be needful, at his own proper cost and charge; and at the end of said term * * * would quietly leave, surrender, and yield up the premises in as good condition as the same were in” at the date of his lease. The buildings on the leased premises were destroyed by fire without the fault of the lessee, and the supreme court of Massachusetts, in construing the covenant in the lease, held it to be a contract binding the lessee to rebuild the burned buildings.
In Beach v. Crain, 2 N. Y., 87, the lease provided that the lessor should, at his own cost, erect a gate at the terminus of a road on the leased premises and keep, the gate there during his pleasure, and that all repairs necessary to be made to said gate were to be made by the lessee. Some person unknown, but without the fault of the lessee, removed the gate, and the court of appeals of New. York held that the covenant of the lessee to repair
In Polack v. Pioche, 35 Cal., 416, it seems that the lease contained the usual covenant of the lessee to repair and keep in repair the demised premises. The buildings on the leased land were destroyed by the breaking of the embankment of a reservoir, and this was caused by the act of someone, but not by any fault of the lessee. The court held that the covenant of the lessee to repair bound him to restore or rebuild the destroyed buildings; and the court declared that such had been the settled rule of construction of such a covenant since the time of Edward III.
In Ely v. Ely, 80 Ill., 532, the lessee covenanted that he had received the leased premises in good order and condition, and that he would keep them in repair at his own expense, and that at the end of the term he would deliver the same up to his lessor in as good order and condition as when they were entered upon. The buildings upon the leased premises were wholly destroyed by fire without the fault of the lessee; and the supreme court of Illinois held that the legal effect of the covenant of the lessee to keep the demised buildings in repair, etc., was that in case the buildings burned he would rebuild the same.
In David v. Ryan, 47 Ia., 642, the lessee covenanted that she would keep the leased premises in a good state of repair. They were destroyed by fire and the court held that the covenant of the lessee bound her to restore the buildings.
In 1 Taylor, Landlord & Tenant [8th ed.], sec. 357, the rule is stated as follows: “When a tenant is under an express covenant to repair the premises, he is liable to make good all loss and damage which they may sustain, and must even rebuild in case of casualty by fire or otherwise.”
In 12 Am. & Eng. Ency. of Law, p. 721, the authorities in support of the rule under consideration are collated and the rule is thus stated: “The alteration in the ten
Among the cases cited in the Encyclopedia of Law and by Taylor is the case of Phillips v. Stevens, supra, and that case seems to have been relied upon in the cases cited by us from New York, Illinois, California, and Iowa. The court in Phillips v. Stevens based its decision upon the principle that when one “by his own contract * * * creates a duty or charge upon himself he is bound to make it good notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract;” and this is the principle upon which the cases from Illinois, Iowa, California, and New York mentioned above were decided.
No one can find fault with the principle that a man should be compelled to perform what he has promised; but, with all due respect to the supreme court of Massachusetts, it seems to us that the court ignored the entire issue. The question there was not whether the lessee was obliged to perform a covenant he had made, but the question was what covenant he had made; that is, whether his covenant to repair and keep in repair the demised premises included within it a contract on his part to rebuild the buildings on the leased premises if they should be destroyed. But in that case, as in the other cases cited, and in every case that we have been able to find which supports the contention of the appellee here, it was taken for granted that the rule at common law was that a covenant by a lessee to repair was equivalent to and involved a covenant to rebuild. Assuming, however, that such was and is the rule of construction at common law, are we bound by that rule?
Section 1, chapter 15, Compiled Statutes of this state, provides that so much of the common law of England as is applicable and not inconsistent with any law passed
In Pollard v. Shafer, 1 Dall. [U. S.], 210, the lessee covenanted to pay rent and deliver up the premises in good repair. The lessor sued for a failure of the covenant to keep in good repair. The lessee pleaded that an alien enemy — the British army — invaded the city of Philadelphia, took possession of the leased premises, and committed the destruction made the subject of the lessor’s action. The question was whether the special matter pleaded was a defense. The supreme court of Pennsylvania held that it was. In that case, as in the case at bar, it was insisted that the covenant of the lessee to keep the demised premises in repair bound him to restore the buildings if destroyed. The court said: “I am of opinion that the defendant is excused from his coAmnant to deliver up the premises in good repair: (1) Because a covenant to do this against an act of God or an enemy ought to be special and express, and so clear that no other meaning could be put upon it; (2) because the defendant had no consideration, no premium for this risk, and it
In Levey v. Dyess, 51 Miss., 501, it was held that in the absence of covenants by the lessee amounting to express covenants to rebuild structures destroyed by casualty, or by proof of negligence by the lessee, the loss is on the landlord.
In Warren v. Wagner, 75 Ala., 188, the lessee covenanted that at the expiration of the lease he would surrender the premises in as good order and condition as they were when he accepted them, usual wear and tear excepted, and it was held that this covenant did not include an agreement on the part of the lessee to rebuild the structures on the premises destroyed by fire. To the same effect see Howeth v. Anderson, 25 Tex., 557. In that case the court said: “Leases are construed like other written agreements, so as to give effect to the intention of the parties.” To the same effect Warner v. Hitchins, 5 Barb. [N. Y.], 666. In that case the covenant of the lessee was to surrender possession of the leased premises at the expiration of the term in the same condition they were in at the commencement of the lease, natural wear and tear excepted. The leased buildings were destroyed by fire and it was insisted in behalf of the lessor that the covenants of the lessee included a covenant to rebuild. But the court said that in order to hold the lessee liable for the value of the destroyed buildings he must have expressly agreed to rebuild them or restore them.
In Wainscott v. Silvers, 13 Ind., 497, the covenant of the lessee was, at the expiration of the term, to surrender the leased premises in as good condition as when they
We reach the conclusion that an express agreement of a lessee to keep in good repair leased premises, and at the expiration of the term surrender their possession in as-good condition as they were when hé entered, natural decay, wear, and tear excepted, is not, and does not include, a covenant to rebuild buildings destroyed without his fault.
We have already seen to what extent the common law is in force in this state and have noted the command of the legislature to the courts of this state in construing reai estate contracts to look to the subject-matter of the contract, the language employed by the contracting parties, and to ascertain if possible, and give effect to, the intention of the contracting parties; A lease for real estate is not a bargain and sale for a given time of the lessor’s interest in the leased premises. It is rather a hiring or letting of property for a certain' time and for a named consideration; and when a lessee covenants to pay rent for a term the consideration for that covenant is his right to the use and occupancy of the thing' leased. In the covenant of a lessee to pay at stated times certain sums of money for the rent — that is, for the privilege or the right to use and occupy the leased premises — is involved the condition that such leased property shall be in existence and be capable of being used and enjoyed by the lessee. The promise to pay a stated sum of money as rent for leased premises for a certain term is based upon the presumption that the leased premises shall exist for the term. In the case at bar, if the lessee had been evicted from part of the demised premises by the holder of a title-paramount to that of the lessor’s, the lessee would be entitled to an apportionment of the rent. (Taylor, Landlord & Tenant, sec. 387, and cases there cited.) Under the exception established to the rule, had the entire leased premises been washed away by a flood, the relation of landlord and tenant existing between the parties to this suit would have from that moment ceased. This relation would not have been terminated by the act of the parties, but by operation of law, and the lessee would have been
Reversed and remanded.
Dissenting Opinion
dissenting.
The case resolves itself into three'general questions: First, is the defendant obligated to rebuild the ice houses; second, if not, is the plaintiff so obligated; and third, if neither party is obligated to rebuild, by what rule is the right to rent to be determined? On the first question we need do no more than express our entire approval of the reasoning and conclusions contained in the opinion of Commissioner Ragan. We think a general covenant to repair cannot be reasonably construed as a covenant to restore buildings after their total destruction by the act of God, and that those cases which give that effect to such a covenant are sustained neither by reason nor well founded authority, as demonstrated in the opinion of Commissioner Ragan. The cases supporting that view have been based on a misconception of the common law. We think, also, that in the absence of a covenant for that purpose the lessor is not obligated to rebuild. On the third question our conclusion is that under the facts stipulated the lessee, if it remain in possession, is bound to pay the rent reserved, without apportionment, for the whole term. We concede that there is much natural justice in the doctrine that on the destruction, without fault of the parties, of a substantial portion of the leased premises, the rent should be abated in proportion to the loss so sustained. The opinion of Commissioner Ragan in