
    HERMAN SCHMIDT vs. SMITH PETTIT.
    At Law.
    No. 8302.
    I. By lease for years it was provided tliat if tlie premises should he destroyed by fire the rent was to eease until the landlord should put them in good order and condition, but the landlord did not otherwise covenant to rebuild, and the building was destroyed by fire during the term:
    
      а. Held, that, as the lessor was not obliged to rebuild, by mutuality of obligation, the tenant could not be held liable for rent after the house was rebuilt unless he elected to enter into possession of the restored premises.
    б. Held, also, that in such case the destruction of the premises by the fire put an end to the lease.
    c. Held, also, that it is a sound principle, where the lease contains no covenant to the contrary, destruction of the subject-matter of a lease will terminate the lease.
    II. A covenant in a lease that the tenant shall keep the premises in good order, and deliver the same in good order as “ they are now,” on the exifiration of the lease, binds the tenant to rebuild in case the premises should be destroyed by fire, and if he abandons them, and the landlord takes possession and erects a more costly and commodious structure, the tenant cannot maintain an action to compel him to pay the difference between the rental value of the property-before and after the fire.
    STATEMENT OP THE CASE.
    This action is brought by a lessee to recover damages from, his landlord for eviction before the expiration of his lease. The contracts .relied upon are a lease and a renewal, both in writing, and both set up in the declaration, and used in evidence upon the trial. The original lease bears date August 12, 1864, whereby the defendant, Smith Pettit, demises to one Julius WeibeJ “ all that messuage, tenement, and premises known as house No. 468 Eleventh street west,” in the city ot' Washington, for the term of five years from the 1st day of August, 1864. The only stipulation in this deed necessary to notice is the following: “ If the said premises, or any part thereof, shall be destroyed by fire or other casualty so that the same shall be untenable, that then, and in such case, the said rent shall cease until the said Smith Pettit, his heirs or assigns, shall rebuild, or put the said premises in good tenantable order and condition.”
    The rent reserved was $190 a month for the first two months, and $80 a month for each month thereafter during the term. Weibel took possession under his lease, and it was assumed and conceded that some time previous to the renewal, presentlytobementionedjheassignedhisinterest therein to the plaintiff, Herman Schmidt. The said renewal was made to said Schmidt in these words:
    “Washington, D. C.,
    
      "December 10,1868.
    “For value received, I hereby renew the above lease of the premises therein described for the period of three years from the first day of December, 1868, thence next ensuing, and fully to be complete and ended, yielding and paying therefor the said rent, and on the same covenants therein contained, with the additional covenant that the said Herman Schmidt shall keep the said premises in good order and repair during the said demise or lease, and deliver the same in as good order as they are now, on the expiration of the said lease.
    “Smith Pettit..”
    The renewed lease was to expire on the first day of December, 1871; but on the fourth day of March, 1870, the leased premises were destroyed by fire. The declaration then alleges that the defendant proceeded to rebuild said premises, and had the same completed by the first day of September, 1870, and that plaintiff on said last-mentioned day, “ and at many other times at the place aforesaid, requested and demanded of the defendant to give to the plaintiff possession of said premises, and to permit the plaintiff to occupy the same, as he was legally and justly entitled to under said lease and renewal, yet the defendant refused to give the plaintiff possession of said premises, and to permit him to occupy the same, and hath ever since refused so to do, whereby the plaintiff lost and was deprived of the annual rental value of said premises from the first day of September, 1870, to and including the first day of December, 1871, and which rental-value during that period was two thousand five hundred dollars per year.
    The pleas of the defendant were, in substance, the general issue, except the fourth and fifth, which are here given in substance, together with the demurrer thereto, and which demurrer was sustained by the circuit court.
    “ And for a further plea the defendant says that after the .partial burning of said premises, as alleged, the plaintiff did not rebuild or repair said premises in accordance with the terms of the lease and renewal and under which he held said premises.
    “ TAYLOR & WOOD,
    
      “Attorneys for Defendant?
    
    “ DEMURRER.
    “The plaintiff says the foregoing plea is bad. The point to be argued is, that the plaintiff was not bound to repair.
    “ MOORE-& BRIGHT and GRAY,
    “Nor Plaintiff?
    
    Whereupon the issue of fact was tried by a jury at the October term of the circuit court in 1872. For the purpose of illustratiug the decision following, it is only necessary to state the third instruction asked for by the defendant on ■said trial, which is here given:
    “ 3d. That under the terms of the lease and renewal the plaintiff was legally bound to rebuild or repair the said premises, if destroyed in whole or in part, by fire, so as to render the same tenantable.”
    This prayer was refused, and the defendant made his •exception to such refusal, and the verdict was in favor of the plaintiff.
    
      Moore & Bright and Gray for the plaintiff:
    The points on their brief are not given, as they refer to a matter which it became unnecessary for the court to consider.
    
      
      Taylor & Wood, for the defendant, made the points following, inter alia:
    
    The legal effect of the additional coven ant in the renewal is to compel the plaintiff to rebuild or repair in case of fire-The legal effect of the covenants of the original lease, is to keep in repair, fire and other casualty excepted, the one being an absolute, and the other a qualified covenant to repair. Can they be made to stand together ? The only way this can be done is to make the qualifying words “ fire or other casualty excepted,” which qualify the original covenant, also to qualify the absolute covenant in the renewal. If this is-done in this case, then the additional absolute covenant on which the lease is renewed is made to be the same qualified covenant that is found in the original lease, and not an additional covenant, or, injjother words, it has no effect at all; is a mere nullity. We think the words “ additional covenant” show that it was intended by the lessor that this, covenant in the renewal should have its legal effect, and that the qualifying words, “ fire or other casualty,” contained in the original lease were “ ex industria ” omitted in this absolute additional covenant contained in the renewal.
    Under the same rule of construction applied by the court, if the original lease contained an absolute negative covenant,, as that the “tenant should ‘not’ repair,” or should repair “under no circumstances,” and the renewal contained the-additional affirmative covenant to repair generally, (in legal effect to rebuild in case of fire,) then these two inconsistent covenants might be made to stand together by applying the same principle of construction, viz, by taking out the qualifying negative words, “not” or “under no circumstances,’” from the first covenant in the lease, and making them qualify the affirmative covenant in the renewal; and thus any two-covenants, however inconsistent, might be made to stand together.
    We think that as the renewal is the last contract, and made with a different party, (in whom the lessee might have had less confidence that he would protect the property from accident by fire,) that if either covenant controls the other, (as being inconsistent with it,) that effect should be given to the last additional covenant contained in the renewal, just as a clause in the codicil of a will controls any clause in the will inconsistent with it.
    If the plaintiff was bound to rebuild, and did not, having paid no rent, the whole consideration has failed, and also • there has been a breach of the covenant of plaintiff to rebuild, which formed the condition of the renewal; and the plaintiff’s action for damages should not have been sustained, but the. demurrers overruled.
    Also, if plaintiff was bound to rebuild, and did not, the measure of damages given by the court was wrong, as the breach of the covenant to rebuild should have been allowed to mitigate the damages to the extent of the increased rental value claimed by the plaintiff in this action.
   Mr. Justice Wylie

delivered the opinion of the court:

According to the terms of the old lease, the rent was to cease until the house should be rebuilt by the landlord, but that lease contained no covenant binding the landlord to rebuild at all; so that he was left at liberty to rebuild or not at his option. If he chose not to rebuild during the term, the tenant was to be discharged from the payment of rent.

And since mutuality of obligation is necessary in every contract, .the tenant could not have been held for the rent after the house had been rebuilt, unless he elected to enter into possession of the restored premises. If, then, the landlord was not bound by any covenant to rebuild, and this discharged the tenant from his obligation as to the payment of rent, the lease was put an end to by the fire.

In Brown vs. Quitter, cited in 1 Selw., N. P., 471, Ld. Northington, Ch., said: “There is not any covenant from the landlord to rebuild. A court of equity can decree a specific performance in those cases only where clear directions can be given in what manner and when the act is to be performed. It would be most arbitrary in'me to decree a rebuilding in a case where there is not any covenant for the rebuilding. All that can be required from a court of equity is, in a case like this, when the action shall be brought for rent, to order an injunction until the houses are rebuilt or the lease delivered up. In the present case there has not been any action brought for tbe rent, and the defendant (the landlord) has offered to accept a surrender of the lease, which is all the relief the plaintiff is entitled to.”

• Thus far we have assumed that the old contract, so far as it related to rebuilding, in ease of fire, was in force between the parties to the renewed one. Under that the tenant was not bound to rebuild, nor was the landlord. But if the premises should be destroyed by fire the tenant was to be released from payment of rent, and the loss was to fall upon the landlord. But this was changed in the new agreement, which provided for an extension of the term to a new party at the former rent, “ and on the same covenants therein contained, with s additional covenant that the said Herman Schmidt shall keep i said, premises in good order and repair during the said demi j or release and deliver the same in as good order as they are n o on the expiration of the said lease.

Nc ’, by all the authorities, this agreement bound the tenant himself to rebuild in case the premises should be destroyed by fire. We have seen that the first contract bound neither the landlord nor the tenant to rebuild in case the premises should be destroyed. The covenants of the old contract became, by reference, the terms of the new one, except as to this one additional stipulation, which bound the tenant in express and distinct terms. It may not have been the intention of either party to make it so, but the agreement is written, and we are bound to interpret it by its own terms; and in a case of such iniquity as the present claim it is not a matter of regret to find the plaintiff defeated by any accident.

As has been stated, the fire occurred on the 4th of March, 1870. The tenant, Schmidt, then abandoned the premises and they were taken possession of by the defendant, his landlord, who erected, and by the month of September following had completed, an expensive and commodious building, of which he took possession and occupied with his family, the rental value of which plaintiff claims to have been at the rate of $2,500 a year. The rental value of the property before the fire was shown not to exceed the amount of the reserved rent, namely $960. The object of the present action is to compel the landlord to pay the difference to his tenant for the unexpired portion of the term, a little more than one year, and, under the instructions of the court below, the jury did find in his favor damages to the amount of $690.

But there remains to be presented another view of this subject, which we deem fatal to the plaintiff’s claim.

The subject of the lease was all that messuage, tenement, and premises known as house No. 468 on Eleventh street west, in the city of Washington, D. C. ” It was not a farm, or a piece of land, nor a lot in the city, but a “ house, ” used, as was shown in evidence, as a restaurant.

Now, it has been determined by several decisions in this country, and upon sound principle, that, where the lease contains no covenant to the contrary, destruction of the subject-matter of a demise will terminate the lease.

In Winston vs. Cornish, 5 Ohio R., 477, which was ejectment brought by the landlord to recover possession from the tenant after the demised premises had been destroyed by fire, the facts were these: The lease was of a store-room on the first floor and of the cellar beneath, in the city of Cincinnati. There were other rooms above, which were not included in the lease. The whole house had been burnt down during the existence of the lessee’s term. The lessee then built another house over the cellar, but of only one story, so that the space it occupied was not more extensive, either on the ground or above, than the premises he had leased. The contract required the tenant to pay his rent during the whole term, with no exception as to fire. It was decided that, the subject of the lease having been consumed, the lease itself was at an end.

The same doctrine was followed in New York in the case of Kerr vs. The Merchants’ Ex. Co., 3 Edwards’s Ch. R., 315, and in Graves vs. Borden, 29 Barbour, 100; and in Alabama in the recent case of McMillan vs. Solomon, 42 Ala., 356.

In Alexander vs. Dorsey, 12 Ga. R., the court say: To rent lands is one thing, but to rent a room is another and a different thing. By the former, the land itself passes; by the latter, nothing but what comes strictly within the meaning of the contract. But when the whole has been destroyed by fire, it never was intended by the parties to prevent the landlord from re-entering the premises for the purpose of reconstructing.”

In Ainsworth vs. Ritt, 38 Cal. R., 89, the court held that, “ where there are no covenants to repair and where the land on which it rests is not leased also, the destruction of the building terminates the relation of landlord and tenant.”

The judgment below is to be reversed.  