
    Harris v. Heackman.
    1. Practice in Supreme Court: finding of trial couet considered as verdict oe JUEY. The finding of facts by the trial court in a law action is regarded by this court as the verdict of a jury, and will not be set aside where the evidence is conflicting.
    2. Lease: acceptance of bent fbom assignee of: lessee not dis-ohaRged. Where there is an express covenant to pay rent for a term of years, the’mere acceptance of rent by the lessor from the assignee of the lessee does not discharge the lessee.
    3. -: DESTRUCTION BY PIBE: LESSEE NOT DISCHARGED. Where the lessee of ground owned a wooden building thereon, which was destroyed by fire during the term, and at the date of the lease the city had passed a fire limit ordinance, by which the lessee was prohibited from erecting another wooden building on the ground, held that he was not thereby discharged from his liability to pay rent to the end of the term.
    
      Appeal from the Superior Court of Covmeil Bluffs.
    
    Tuesday, December 11.
    The plaintiff claims that in May, 1877, he entered into a written contract with defendant, by which he leased to defendant part of a lot in Council Bluffs, for the period of five years, and that defendant by said contract agreed to pay as rent twelve dollars per 'month, monthly in advance, and that there is due to plaintiff the sum of two hundred and forty dollars on said lease.
    The defendant admited that he did “ enter upon the said ground under a contract with plaintiff for the monthly ground rent of twelve dollars per month in advance, and that he was to occupy the same for five years,” and averred that at that time defendant owned a wooden building situated on said lot; that he afterward sold said building, and assigned the lease to other parties, who took possession of the lot, and that, after that, the said other persons paid the ground rent to the plaintiff; that plaintiff had full knowledge off the sale of the building and transfer of the lease to the other parties, and accepted the rent from them, and that he thereby released and discharged the defendant from the payment of the rent. He denied that said lease was in writing. He further alleged that said lot was within the fire limits of the city, and said building was of wood, prohibited by ordinance, and was destroyed by fire, and that no new wooden structure could lawfully be erected upon said lot.
    There was a trial by the court, and a judgment for the plaintiff. Defendant appeals.
    
      G. A. Holmes, for appellant.
    
      Fliol&vnger Bros., for appellee
   Rothrock, J.

I. The plaintiff claimed that the original written lease was lost, and he introduced secondary evidence of its contents. It is claimed by appellant' that . x ■> the evidence 'thus introduced was insufficient to sh°w that there was a written lease. We think otherwise. This is a law action, and the finding of the court is to be regarded the same as the verdict of a jury, which is not to be interfered with where the evidence is conflicting. There was abundant evidence on this point to sustain the finding.

II. Tbe lease was for tbe term of five years, and tbe de-fendent expressly agreed to pay tbe plaintiff tbe sum of twelve dollars per month in advance. It is claimed by appellant that there was only an implied covenant to pay the rent, and that acceptance of rent the plaintiif from tbe assignees of defendant discharged tbe defendant from further liability. But tbe lease is more than an implied, covenant.. It is an express agreement to pay the plaintiif the rent for the term, and, where there is an express covenant to pay tbe rent, the mere acceptance of rent from an assignee of tbe lease does not discharge tbe lessee. Fanning v. Stimson, 13 Iowa, 42; Barhydt v. Burgess, 46 Id., 476. Besides, tbe plaintiif testified that, when he found the other parties in tbe building, he “gave them a receipt for rent on tbe Heackman lease,” and that be looked to Heackman for tbe rent under the lease.

III. Tbe building on the lot was destroyed by fire. At the time tbe lease was executed, and at tbe time of tbe fire, there was a fire limit ordinance in force, by which tbe erection of a wooden building on the lot was prohibited. The rent which is claimed in this action accrued after tbe building was burned. It is claimed that the destruction of tbe building, taken in connection with tbe terms.of the lease, terminated tbe lease, and that defendant is not liable. But tbe defendant made his contract when tbe fire limit ordinance was in force, and, even if it was not then in force, tbe burning of tbe building, would not discharge him from his contract. David v. Ryan, 47 Iowa, 642.

Affirmed.  