
    RICHARD G. DAVENPORT, Executor of Graham, v. THE UNITED STATES.
    [No. 16413.
    Decided May 18, 1891.]
    
      On the Proofs.
    
    The Signal Service rents a house in Washington as an office for one year, agreeing to surrender it in as good condition as reasonable use and wear will permit. At the expiration of the term a new lease is executed, agreeing to deliver up the premises in as good order as “ when first occupied” by the Government, reasonable wear and tear excepted. After many years the premises are returned to the owner in a dilapidated condition.
    
      I.Where a second lease provides that the premises shall he surrendered in as good condition as when “first occupied ” hy the lessee, the statute of limitations can not he set up as to damages suffered under a prior lease.
    II.There is no rule of law which distinguishes between damage done hy the lessee and injury incidental to ordinary wear and tear. The distinction is a-matter of judgment upon the evidence.
    III.A lessor is entitled to have his property returned to him in good condition, wear and tear excepted, but he can not charge the lessee with damage and decay incidental to a long-continued occupancy.
    
      The Beporter’s statement of tbe case:
    Tbe following are tbe facts of tbe case as found by the Court:
    I. Tbe United States, by H. W. Howgate, property and disbursing officer, Signal Service, U. S. Army, leased from George B. Graham bouse No. 1725 G street Northwest, Washington, D. C., for use as an office, with tbe grounds in connection therewith, for tbe term of one year, with tbe privilege of renewal from year to year, the term to commence on tbe 1st day of July, A. D. 1876, as shown by tbe following instruments in writing:
    “This is to certify that I have let and rented unto tbe United States Signal Service, for use as an office, house No. 1725 G street, Washington City, D. C., with the ground in connection therewith, for the term of one year (with the privilege of renewal for one year) from the first day of July, 1876, at the monthly rent of one hundred dollars, payable monthly on the first day of each and every month.
    “The premises above mentioned, or any part thereof, shall not be let or underlet without the written consent of the landlord.
    “ Given under my hand and seal the 23d day of August, 1876.
    “Geo. H. Graham, [seal.]”
    “ This is to certify that I have hired and taken from Thomas Hyde, attorney for Geo. B, Graham, house No. 1725 G street, Washington, D. 0., and the grounds in connection therewith, for the term of one year (with the privilege of renewal for one year) from the first day of July, 1876, at the monthly rent of one hundred dollars, payable monthly on the first day of each and every month.
    “And I hereby promise to, make punctual payment of the rent in manner aforesaid, and to quit and surrender the premises, at the expiration of said term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted, and engage not to let or underlet the whole or any part of the said premises without the written consent of the landlord.
    “ Given under my hand and seal the 23d day of August, 1876.
    “H. W. Howg-ate. [seal.]
    “ Property and Disbursing Officer,
    
    
      Signal Service, U. S. Army.”
    
    II. The tenancy created by the terms of said lease continued from year to year until a new contract of lease for the same premises was made by the United States through Capt. S. M. Mills, on behalf of the United States, and George E. Graham on his own behalf, dated June 30, 1883, for the term commencing July 1, 1883, as shown by the following instrument in writing:
    “ Articles of agreement entered into at Washington, District of Columbia, this 30th day of June, eighteen hundred and eighty-three (1883), between Capt. S. M. Mills, 5th Art’y, P. and D. O. Signal Service, United States Army, for and on behalf of the United States, of the first part, and Geo. R. Graham, of Washington, of the county of Washington, District of Columbia, of the second part.
    “ This agreement witnesseth, that for and in consideration of the payments and covenants hereinafter mentioned, to be made and performed by the said party of the first part, the said Geo. E. Graham, his heirs, executors, and administrators, have covenanted and agreed as follows:
    “I, the said Geo. E. Graham, his heirs, executors, and administrators, shall, and by these presents do hereby, demise, let, rent, and lease to the United States of America the whole of building situated on G street between Seventeenth (17) and Eighteenth (18) streets NW., in the city of Washington, D. C., known as number 1725, to have and to hold the same, with all the hereditaments and improvements thereunto belonging, from the first (1st) day of July, eighteen hundred and eighty-three (1838), to the thirtieth (30) day of June, eighteen hundred and eighty-four (1884), or as long as required by the United States, not extending, however, beyond the thirtieth day of June, eighteen hundred and eighty eight (18s3).
    “The said premises are rented for the use of the Chief Signal Officer, United States Army, as offices, and the party of first part, on behalf of the United States, doth covenant and promise to deliver up and yield, when no longer required for the use of the United States, the said premises in as good condition as when first occupied by the Government, reasonable wear and tear and damage b" the elements excepted.
    “II. If the said premises shall be in the possession of the United States on the thirtieth day of June, 188-, under this lease, t.be United States may at its option renew this lease for a period not extending beyond the end of the next fiscal year, with all the covenants and agreements herein contained, and shall have the privilege of such renewal at the expiration of each fiscal year thereafter, if the lease is then in force.”
    
      *******
    
    III.- The United States occupied said premises under the terms of said lease No. 2 from July 1, 1883, until July 1,1886, when a third contract of lease of the same premises was made between the United States and George R. Graham, F. B. Jones, captain, and assistant quartermaster, U. S. Army, acting on behalf of the United States, and George B. Graham on his own behalf, the term to commence July 1,1886, and to extend so long as the United States required the premises, not beyond June 30,1891, as shown by the following instrument in writing:
    “Articles of agreement enter ed into this 1st day of July, eighteen hundred and eighty-six, between Captain Francis B. Jones, A. Q. M., property and disbursing officer Signal Service, U. S. Army, for and on behalf of the United States, of the first part, and Geo. B. Graham, of the city of Washington, of the county of Washington, of the District of Columbia, of the second part.
    “ This agreement witnesseth, That for and in consideration of the payment and covenants hereinafter mentioned, to be made and performed by the said party of the first part, the said Geo. B. Graham, his heirs, executors, and administrators, have covenanted and agreed as follows:
    I. That said Geo. B. Graham, his heirs, executors, and administrators .shall, .and by these presents do hereby, demise, let, rent, and lease to the United States Signal Service, for use as an office by the Chief Signal Officer of the Army, the whole of building (together with the lot on which the same is erected) situated on G street, between Seventeenth and Eighteenth streets NW., known as No. 1725, in the city of Washington, District of Columbia, to have and to hold the same, with all the hereditaments thereunto belonging, from the first day of July, eighteen hundred and eighty-six, to the 30th day of June, eighteen hundred and eighty-seven, or so long as required by the United States, not extending, however, beyond, the thirtieth day of June, eighteen hundred and ninety-one.
    It is especially understood and agreed that the said premises are to be used as an office by the Chief Signal Officer of the Army, and that all rights, powers, and facilities necessary or convenient for such uses are conveyed and secured to, and reserved by, the party of the first part as a fundamental condition, including the right to make such alterations, to attach such fixtures, and erect such structures or additions as may be necea* sary or convenient for the objects aforesaid, and that the premises shall be delivered up, when no longer required for the use of the United States, in as good .order and condition as they were when first occupied by the Government, reasonable wear and tear and damage by the elements excepted.
    II. It is further expressly agreed that the said Geo. E. Graham, party of the second part, shall, from time to time, as_ necessary, make such repairs as will keep said building in a ten-antable condition so long as this lease shall remain in force.
    “III. If the said premises shall be in possession of the United States on the thirtieth day of June, eighteen hundred and eighty-seven under this lease, the United States may, at its option, renew this lease for a period not extending beyond the end of the next fiscal year, with all the covenants and agreements herein contained, and shall have the privilege of such renewal at the expiration of each fiscal year thereafter, if the lease is then in force, provided an appropriation be made by Congress for the purpose and is available.
    **###*#
    IV. The lease No. 3 was extended July 7, 1887, for term commencing July 1, 1887, and said premises were occupied by the United States under the terms of said lease until October 31,1888, when they were vacated by lessor and surrendered.
    V. The occupancy by the United States of premises herein referred to was continuous, under the terms of the several leases hereinbefore set forth, from Julyl, 1876, until October 31,1888.
    VI. At the time the Government first occupied said premises the condition of the house was that of a dwelling in good repair.
    VII. When the United States quit and surrendered said premises the condition of the house was one of unfitness for occupancy as a dwelling; the house was in bad condition, by reason of the wasteful, usage of the United States during its occupancy herein set forth.
    VIII. The most of the damage to the house and to the grounds was the result of wasteful usage on the part of the United States, and not the result of ordinary wear and tear. The amount of damages so resulting to said property because of such wasteful usage is the sum of $2,036.
    IX. The claimant made repairs whenever he was required to do so under the terms of his contract and was requested so to do by the United States.
    
      
      Mr. R. T. Crosby and Mr. J. M. Vale for the claimant.
    
      Mr. John G. Chaney (with whbm was Mr. Assistant Attorney-General Cotton) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

This is a claim growing out of the use and occupation of a house in the city of Washington rented from the decedent as an office for the use of the Signal Service.

The occupation commenced on the 1st day of July, 1876, and terminated on the 31st day of October, 1888.

Three leases were executed by the parties, which appear at length in the findings.

The rent was paid regularly, and no claim is made for that ; but it is alleged that, in consequence of the manner in which the premises were used by the defendants, they became and were greatly damaged, beyond the reasonable wear and tear thereof, in violation of the duty of the United States under the terms of said leases.

In the lease executed on the 1st day of July, 1886, it is provided, “ that the premises shall be delivered up when no longer required for the use of the United States in as good order and condition as they were w'hen first occupied by the Government, reasonable wear and tear and damages by the elements excepted.”

This lease (by the agreement to restore the property as it was at the time it was first occupied by the Signal Service) removes all questions of the statute of limitations, as it expressly provides, that the condition of the property, when the first lease was executed, shall be the measure of the responsibility of the defendants under the lease extending to the end of the tenancy.

But few, if any, questions of law can arise upon the facts of this case.

While it has been in some respects most difficult in its facts, it is plain in the principles of law applicable to the rights of the parties.

Without an express undertaking upon the part of the defendants, they would be bound, to use the property so as not to damage it beyond the reasonable wear and tear.

Upon the expiration,of the lease at said time the lessor took possession of the premises, and in consequence of the condition of the property he was compelled to expend nearly $4,000 in restoring it to a condition of habitable use..

It will be observed that the leases extended the occupation beyond a period of 12 years, so that at the end of that time there would have been considerable repairs needed to theprop-erty if the United States had been most careful in use of the premises during the entire length of the tenancy.

To mark the line between the repairs which would have been needed because of the ordinary wear and tear and those needed because of the improper use by the defendants has been somewhat difficult. There is no fixed rule of law or of fact, which enables a court to distinguish between the two classes of damage.-

While the lessor is entitled to receive his property in good condition, “ wear and tear excepted, he is not entitled to charge the lessee with all the decay and damage that may have happened during the continuance of the lease.

The court has examined the nature and character of the different items of repairs, and has determined that the sum of $2,036 are justly chargeable to the United States; and for that a judgment will be entered.  