25 Kan. 674 | Kan. | 1881
The opinion of the court was delivered by
This was an action on a lease, in which the’ defense was the destruction of the property leased, by fire. Judgment was entered in the district court in favor of the defendants, and the plaintiff alleges. error. The lease was in writing, and was as follows:
“It is hereby agreed between Joseph Whitaker, of the county of Leavenworth and state of Kansas, of the first part, and John W. Dever, general superintendent of the Leavenworth syrup and sugar refinery, of the county of New York and state of New York, party of the second part, as follows: The said Joseph Whitaker, in consideration of the rents and covenants hereinafter specified, does hereby let and lease to-said J. W. Dever and his associates, the beef and pork packing house, No. 1411, South Second street, situated upon a portion of block No. six (6), in Eackler’s addition to Leavenworth city, Kansas, with all engines, boilers, machinery, scales and fixtures in said building, consisting of engines, boilers, pumps, elevator machinery and steam tanks, and also a railroad switch with scales attached to weigh railroad cars, and one wagon scales, appertaining to said leased premises, a schedule of said machinery to be prepared in duplicate on the first day of December, 1879, with the ground upon which the' building is situated, and a strip of one hundred feet immediately south of said building at a right angle with Second street,, and a strip north of said main building seventy-five feet wide at a right angle with said Second street, said ground being parts of blocks six and seven (6 and 7), in Fackler’s addition to Leavenworth city, Kansas, together with the use of the
“And the said John W. Dever does hereby hire, for the term of two years from the first day of December, 1879, and does hereby covenant and promise to pay to said Joseph Whitaker as rent for the premises and property the sum of two hundred and seventy-five dollars per month and during the continuance of this lease, beginning December 1st, 1879. And said party of the second part agrees to keep all the machinery and attachments thereto insured at its insurable value, in some responsible company, for the benefit of said Joseph Whitaker during said term of two years, and also to pay all taxes upon all the machinery and fixtures placed by the second party in said premises. And the party of the second part also agrees that he will at his own expense, during the continuance of this lease, keep the said premises and other property in every part thereof in good repair and working order, and will not release the whole of .said property without the written consent of said Whitaker, but may associate other persons with him, and at the expiration of the term yield and deliver up the same in like condition as when taken, reasonable use and wear thereof and damages by the elements excepted. And the said party of the first part does covenant that the said party of the second part and his associates, on paying the rent as agreed and performing all the covenants aforesaid, shall and may peaceably and quietly have, hold and enjoy the premises .and property for the term aforesaid. The party of the first part further agrees that the party of the second part, during the pendency of this lease, shall have the privilege of purchasing said property, in preference to any other party at the same price, the premises, machinery and fixtures herein mentioned; and should the said party of the first part desire to release the same at the expiration of this lease, the party
“Witness our hands and seals, the 18th day of October, 1879.
(Signed) J. W. Whitaker. (Seal.)
J. W. Dever, (Seal.)
Gen. Supt. Leavenworth Sugar and Syrup Refinery.
Executed in presence of—
H. Williams,
W. Greek.”
The trial was by the court without a jury, and the following findings of fact were made. Upon them, with the lease, all the questions in the case arise:
“First. The plaintiff, by the lease sued on, rented the property therein mentioned, 'partly personal and partly real, to John W. Dever and his associates for two years from December 1st, 1879, to be used as a manufactory for glucose, syrups and sugar from corn, the rent to be $275 per month, payable monthly.
“Second. Soon after the execution of said lease, and on the — day of December, 1879, the said Dever associated with himself Lucien Hawley, Nicholas A. Jones, J. Martin Jones, C. Y. N. Kittridge, Merritt H. Insley and Matthew Ryan, as partners in the business to be carried on, on said leased premises, and did conduct and carry on such business upon said premises for some time, and the said associates were carrying on such business upon said premises at the time of the fire hereinafter mentioned.
“Third. That down to and including the month of October, 1880, the plaintiff demanded of the said firm and collected the rents as specified in the above-mentioned lease, and the firm paid the same in accordance with the stipulation in said lease.
“Fourth. That before the fire hereinafter mentioned, but at what date the proof does not disclose, the said Lucien Haw-ley, on behalf of himself and associates except Dever, asked of the plaintiff his written consent to the assignment of' said lease by Dever to the firm aforesaid, which was refused, the plaintiff assigning as a reason for such refusal that an assignment was unnecessary, inasmuch as the lease ran not only to Dever, but to his associates as well.
“Fifth. On the night of October 28th, 1880, the buildings embraced in the lease were wholly destroyed by fire. At the
“Sixth. That the fire left the premises and property mentioned in the lease in a condition in which the use of the same for the business for which it was rented was of no value, without an expenditure thereon greatly in excess of the value of the use of said premises for the remainder of the lease; but that the land and such personal property as was not wholly destroyed might have been of some use and value for other purposes, but was of no value to the lessees except in connection with the buildings and other property as they were before the fire.
“Seventh. That about November 1, 1880, the defendants notified the plaintiff that they would no longer occupy or use said premises or property, and have not since that time occupied or used the same, and the plaintiff refused to receive the said premises, and has not received the same.
“Eighth. That about December 1, 1880, the plaintiff demanded of the defendants payment in accordance with the stipulation of said lease for rent for the month of November, 1880, which was by the defendants refused because of the condition in which the fire left the premises.
“Ninth. On the 26th day of July, 1880, said Lucien Haw-ley, Nicholas A. Jones, J. Martin Jones, C. Y. N. Kittridge, Merritt H. Insl’ey and Matthew Ryan brought in this court against John W. Dever, suit No. 7980, in which suit judgment was rendered against said Dever, as appears in journal 21 of this court, on pages 97 and 98, here referred to as part of this finding.”
Conclusion of law:
“The defendants are entitled to a judgment for costs.”
The general doctrine of the common law unquestionably was, that upon a covenant in a lease of lands and buildings for a term of years to pay rent, the rent could be recovered after a destruction of the buildings leased, by accidental fire. The express contract and promise was not discharged by an act for which the lessor was not responsible. See among many the following authorities: Fowler v. Bott, 6 Mass. 63; Sheets v. Sheldon, 7 Wall. 416; Bussman v. Ganster, 72 Pa.
It is further claimed that even if this general rule be recognized as in force in this state, until modified by the legislature as was done in the state of New York, it is not controlling in this case, because here was a lease of both real and personal property and at a single gross sum; that at common law a lease of the latter ceased upon its accidental destruction by fire;' and that as plaintiff failed to show anything by which an apportionment of the rental value of the two kinds of property can be made, he must fail in his action.
And finally, it is insisted that the parties to this lease have made provision for,the contingency of fire, and that upon a fair interpretation of the contract as a whole, it is evident that the understanding and intent were that upon a destruction by fire rent should cease, and in insurance should the landlord receive compensation.
These are the questions for our consideration.
With regard to the first question, there can be little doubt that if it were presented as a.new question to the courts, the general rulings would be against the common-law doctrine. For while the argument in support of it is brief and dear, yet the practical application of the doctrine works injustice. It assumes that which is not generally true, and ignores that which is ordinarily the underlying fact. A man leases, and contracts to pay rent. He puts no limitations or conditions in his contract. Therefore the courts should insert none, and should hold him to the very letter. He knew of the possibility of destruction by fire, and if he purposed to pay only until such destruction, he should have inserted a stipulation accordingly.
Again, in almost every other contract these underlying .facts are recognized, and modify the letter to accomplish the intent. Thus in the hiring of chattels, though the terms be as absolute and positive as those of a real-estate lease, their absolute destruction without the fault of the hirer terminates the contract. It is assumed that the contract only lasts and the obligation to pay for the use continues only while the property remains in being, and not until the end of the term named in the contract. Anything which involves the substantial destruction of the chattel puts an end to the obligations of either party in reference to it. (Story on Bailments, §417; Edwards on Bailments, §§375, 409; Dexter v. Norton, 47 N. Y. 62.) So if the hiring is of a room or rooms in a building, destruction of the building by fire puts an end to the lease. (Vinton v. Cornish, 5 Ohio, 447; Graves v. Berdan, 26 N. Y. 498; Stockwell v. Hunter, 11 Metc. 448; Womack v. McQuarry, 28 Ind. 303; McMillan v. Solomon, 42 Ala. 356.) Though perhaps a different rule may be considered in force in England. (Izon v. Gorton, 5 Bing. [N. C.] 501.) In the
Further, it may be remarked that even at common law it was held that if the interest of the lessee in a part of the demised premises was destroyed by the act of God or the public enemy, so as to be incapable of any beneficial enjoyment, the rent should be apportioned. Thus it is said in Rolle’s Abr. 236, that if the sea break in and overflow a part of demised premises, the rent should be apportioned. See also Bayley v. Lawrence, 1 Bay, 499; Ripley v. Wightman, 4 McCord, 447; Coogan v. Parker, 2 South Car. (N. S.) 255 — a case in which is a full and satisfactory review of the authorities upon this question; Edwards v. Etherington, 24 Eng. C. L. 437; Cowie v. Goodwin, 9 Car. & P. 378. Without pursuing this discussion further, we close with a reference to the opinion of Chancellor Walworth, in the case of Gates v. Green, 4 Paige, 354, in which he says: “It appears to be a principle'of natural law, that a tenant who rents a house or other tenement for a short period, and with a view to no other benefit except that which may be derived from its actual use, should not be compelled to pay rent any longer than the tenement is capable of being used.” He refers to the civil law, the law of Scotland and elsewhere, to show that such is the accepted rule outside the domain of the common law, and evidently regards the rule of the latter as against' the general law, and also against natural justice. If the case before us rested upon the single question, whether the rule of the common law is a part of the law of this state, we should be slow, to disturb the decision of the district court. True, the common law is in force in this state, but only as made so by statute, and only then “as modified by constitutional and statutory law, judicial decisions and the conditions and wants of the people.” (Comp. Laws 1879, p. 1013, §3.)
But passing to the second question, and we think the law is, that where real and personal property are leased by. a single instrument, for an amount in gross, and the personalty is a
Trinity Term, 35 Hen. 8; Richards Le Taverner’s Case, 1 Dyer, 15. — A man makes a lease for years, of land and of a stock of sheep, rendering certain rent, and all the sheep died. It was asked upon the' indenture of Richards Le Tav-erner whether this rent might be apportioned? And some were of opinion that it should not, although it is the act of God, and no default in the lessee or lessor; as if the sea gain upon part of the land leased, or part is burned with wild fire, which is the act of God, the rent is not apportionable, but the entire rent shall issue out of the remainder. Otherwise is it if part be recovered or evicted by an elder title — then it is apportionable. And of this opinion were Bromeley, Port-man, Hales, Sergeants; Luke, Justice; Brooke, and several of the Temple. But Marvyne, Brown, Justices; Townshend, Griffith, and Foster, e contra; but all thought it was good equity and reason to apportion the rent. And afterwards this case was argued in the readings by More, in the following Lent, and it seemed to him, and to Brooke, Hadley, Fortescue, and Brown, Justices, that the rent should be apportioned, because there is no default in the lessee.
See also, Womack v. McQuarry, 28 Ind. 103.
Indeed, there would seem to be no just ground for denying apportionment, even though the common-law doctrine in respect to leases of real estate be conceded. Mingling real and personal property in a single lease ought not to prevent
With reference to the last proposition, it will be borne in mind that the obligation to pay rent after the destruction by fire was always rested upon the part of the contract therefor. It was never doubted but -that by contract this obligation might be limited or removed. The parties might stipulate for rebuilding by either, for the absolute termination of the lease, or any other change in their respective obligations and rights. Here the contingency of fire was foreseen and provision made therefor. And whether that provision was ample or not, is no more a matter of present inquiry than whether the rental stipulated for was excessive or insufficient. The contract was, that the tenant should keep the personal property insured at its insurable value in some responsible company for the benefit of the landlord. Thus in case of fire the landlord would receive pay for his property destroyed. Rent is compensation for the use, and implies the continued existence of the property to be used. Here this compensation was named in the fore part of the lease as “$275 per month as rent for the use of the premises and property above described.” Beyond this compensation was the stipulation for insurance. By the lease, then, as a whole, the tenant was to pay rent for the use of the property; and in addition, purchase a guaranty to the landlord that in case such use should fail by reason of fire, he should receive the value of the property destroyed. When the latter comes into force, is it not plain that the former ceases? Was not the one intended as a substitute for the other? Suppose, instead of contracting to procure insurance, the tenant had contracted to himself insure the property, so that in case of destruction by fire he was bound to pay the value: would it for a .moment be doubted that the rent ceased when the obligation to pay the value arose? Apply such a contract to the case at bar: could it be held that a party con
Counsel refers us to cases in which it was held that the fact that the landlord had collected insurance on the building did not affect the tenant’s liability on his contract to pay rent; but that is not the question here. It is not what either party may do voluntarily and for his own benefit without affecting the contract liability of the other, but how fár does one stipulation in a contract modify and limit another? It might be conceded that' the landlord could .place any insurance on his property, and in casé of fire collect it even to the full value of the building, or that the tenant could volun--'teily-place a like insurance for his own or his landlord’s benefit, and that such separate, voluntary act of either in no manner affected the contract obligations of either to the other, and still such concession would throw no light on the question as to the scope and intent of a single contract which couples an express promise to pay rent with an equally express promise to insure or to furnish insurance. Force can be given, it is true, to each promise to the full extent; the tenant can pay rent to the end of the term whether the building burn or not, and he can furnish the insurance, and
But it is said that the insui’ance contracted for was simply on the personalty; that such insurance, even if it abates the rent, abates it only on the personalty, and that if defendants wish any abatement .they must show the relative rental values of the real and personal property. This is a misconception. The rent was in gross for the real and the personal property. The contract concerning insurance was a single provision; it shows that the parties contemplated the possibility of fire, and made their stipulations accordingly; and whether-that provision was for insurance in a definite amount on all the property, or the full value of either the real or the personal, is immaterial; it is the contract provision for the possibility of fire. Doubtless the landlord was willing to .pay for the insurance on the building, if in addition to rent for the use of his property he could also obtain payment of the insurance on the machinery, etc.
The case of Bricker v. Bricker, 11 Ohio St. 240, illustrates this proposition. In that ease, .which was an action on the covenants in a deed, the deed contained a covenant of general warranty and one against incumbrances. This latter was a special one, and excluded the incumbrance, which was afterward enforced against the land. This exclusion was not direct and by naming the excluded incumbrance, but by implication and from naming a certain class of incumbrances against which the grantor covenanted. Yet the court held that the covenant of general warranty, which alone would have covered this incumbrance, was limited by the covenant against incum-brances, and as that excluded this particular incumbrance, it
Again, it is to be noticed that this lease is specially of the building and machinery. Its language is not that a certain tract of ground with the buildings thereon is leased, but that a certain building and some named personal property are leased, together with the ground upon which they are situated. This shows that the thought of the parties was on the hiring of that property which was liable to destruction, and not to the mere place upon which it rested: a very different thought from that which underlies the hiring of a farm, where the use of the ground as such is the matter of consideration.
But it may be saicl that this gives undue force to the insurance clause, because the property might be only partially destroyed by fire: and what then ? May the lessee throw up the entire lease, or is it binding upon him, subject to an abatement of the rent? It will be time enough to decide that question when it arises. For the present, all we decide is, that the interpolation of such a stipulation concerning insurance does away with the strict rule of the common law, even if it has any force in this state, and that where there is a total destruction by fire, and the entire beneficial use is lost to the lessee, he may rescind the lease and be relieved from his promise to pay rent. Of course, other considerations may apply where the soil itself has a beneficial use, or there is only a partial destruction. Those cases will be considered when they arise.
Upon the record as it stands before us, we think the decision of the district court is correct, and it must be affirmed.