
    Thomas Seevers v. G. Gabel, et al. Appellants.
    1 3 A Construction: lease. A provision in a lease that leased property should be returned “as it now is, uaualVear excepted” does npt make lessee liable in damages where the property is, without his fault, destroyed by fire.
    2 Practice on Appeal. Instructions which clearly refer to law questions arising on the pleadings, reviewed, though no evidenceds brought UP.
    
      Appeal from Mahaska District Court. — Hon. D. Ryan, judge.
    Wednesday, April 3, 1895.
    Action upon a written contract, as follows: “This indenture, made and entered ini» this seventeenth day of January, 1891, witnesseth, that the said first party lease to second party the following described personal property, to-wit, — one saw rig, complete — from the first day of February, 1891, to the first day of February, 1892, inclusive. * * * And the said second party agrees to pay first party, as rent for the sarnie, eight dollars and thirty-three cents ($8.33) per month, in advance, * * * Second party further agrees to keep a competent man to run same, and, at the expiration of the time mentioned in this lease, to give first party peaceable possession of said personal  property, by returning the same to Seevers’ Manufacturing Company’s shops, in Oskaloosa, in as good condition as it now is, usual wear excepted. Thomas Seevers. G. Gabel. C. Brown.” Plaintiff alleges that defendants have failed to pay any part of the rent, wherefore he asks to recover one hundred dollars, with interest. He also alleges that defendants failed to return said property, as required by the contract, wherefore he asks to recovar1 four hundred dollars damages. Defendants answered, admitting the .contract, and alleging that in the night time, on or about the '-thirtieth d;ay 'of '.June, 1891,'said property was destroyed by fire; that said fire was the result of accident or incendiarism, and was not on account of any negligence or want of care on defendants5 part; Other allegations of the answer are not material to the question to be considered. Plaintiff replied, denying-generally the allegations' of the answer. ' The case was tried to a jury, and a verdict and judgment had for plaintiff-for .one hundred and ninety-three dollars and. eighty-three cents, including one hundred and forty-seven dollars and twelve cents damages. No question is made on this appeal as to the rent
    
      Reversed.
    
    
      'Bolton $ McCoy for appellants.
    
      Seevers & Seevers for appellee.
   Given, C. J.

I. The record before us shows that no' transcript of the reporter’s motes of the evidence in this case was filed with the clerk of the district court until after this appeal was taken, and appellee had filed an amended abstract denying appellants’ abstract, and alleging and showing that the evidence had mot been preserved as required. Appellee contends that, as the evidence is not before this court, we cannot consider the errors assigned by appellants on the giving and refusing of instructions. The instructions given, which are complained of, clearly relate to a matter of law involved in the case, as shown by the pleadings independent of the evidence. It is a ques- • tion of the construction that should be given to the written contract sued upon and admitted. Other errors assigned cahnot be considered, in the absence of the “ ' evidence duly preserved and authenticated.

■’ ' II. The question to' be considered is whether the Court erred in giving the following instructions: “(3) Evidence has been offered tending to prove that during the term of the lease the property leased by the plaintiff to the defendants was injured by fire. Defendants* contention is that the fire terminated the contract of lease, and released the defendants from all liability, excepting for the rent that had accrued up’ to the date of the fire. ■ (4)- You are instructed that this would be ' true, but for the terms of the contract itself, which provide thát The defendants, at the expiration of the tiihe mentioned in .the lease, were to return the said property in as good condition as it now is, usual wear excepted,'* and this clause imposes upon the defendants the obligation of returning the property notwithstanding the fire. If they have failed to do so, then plaintiff will be entitled' to recover damages, measured by the rule hereinafter given.” Appellants complain of that part of the instructions that states that the clause of the contract quoted “imposes upon the defendants the obligation of returning the property notwithstanding the fire,” or to respond in damages. They cite authorities as to the different hinds of bailments', and the care required of bailees, and contend that under this contract they are. not liable for injury to the property occurring without their fault. There is no question of negligence involved in this inquiry. The instructions complained of are grounded upon the assumption that the property was injured without fault on the part of appellants. Appellee concedes, as do the instructions, that appellants would not he liable, in the absence of the express contract with respect to the return of the property. He contends, and correctly so, that the liability which the law would imply in the absence of contract may be enlarged by contract. His claim is that under this contract the appellants are absolutely bound to return the property, or, in case of its unavoidable loss or injury, to respond in damages. In the absence of a contract th« law would imply a promise on tihe part of appellants to return the property at the expiration of the term in as good condition as when received, ordinary wear and decay excepted'. Aside from naming a place to which the properly was to* be returned, this is just what the parties have expressed in their contract. Surely, appellants’ liability is mot enlarged by expressing in the contract just what the law would have implied; yet it is not claimed that appellants would be liable under the implications of the law. That a place is named to which the property was to be returned does not enlarge appellants’ liability. The sole contention is whether, under that part of the contract quoted in the instructions, appéllants are bound to return the property, or to respond in damages, notwithstanding its destruction by fire without fault on their part It is simply a question as to the proper construction of this contract Appellee cites the rule that “where the parly by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay by Inevitable necessity, because he might have provided aigainst it by contract.” Our inquiry is whether the appellants did, by this contract, create the duty or charge upon themselves to return the property, or respond in damages in case of its unavoidable destruction. If they did so, they are liable; otherwise, not. We will be aided in this inquiry by referring to the construction given by the courts to similar «on-tracts. . Among the many cases that might be cited, we refer to the following: In McEvers v. The Sangamon, 22 Mo. 188, a barge wa.s hired by the defendant under an agreement «that it was “to be delivered' in good order, the usual wear and tear excepted.” The barge was destroyed by ice, and it was held that the steamboat •was not liable, on the contract, for the nondelivery of the barge. In Young v. Bruces, 5 Litt. (Ky.), 324, the contract was for the hire of a slave “until said 25th of December, 1819, to be returned, well clothed, at that time.” Defendants answered that the slave was drowned by inevitable accident, without fault of theirs, whereby they were prevented from returning him. The court held that it was not the intention of the parties that the defendants should be responsible for the death of the slave without fault on their part, and that the demurrer was properly overruled. In Harris v. Nicholas, 5 Munford, 483, the contract was for the hire “of four negro fellows the present year, who are to be returned well clothed, on or before the 25th of December.” Defendant answered that before the expiration of the time one of the negroes, without fault on defendant’s part, departed this life. The court held that if the covenant could be considered “as a covenant to return the negro in question, as well as to secure the payment of the money due for his hire, it ought not to be considered as a covenant to insure such return in the event which has happened.” In Maggort v. Hansharger, 8 Leigh, 532, the plaintiff leased1 to the defendant certain real estate, upon which there was a gristmill and carding machine, defendant agreeing “to return the said property with all its appurtenances.” The mill and carding machine were destroyed by fire accidentally, or by some unknown incendiary. It was held that the contract was distinguishable from those wherein the party covenants to beep in. order, and that the tenant was not bound to rebuild.. In Warner v. Hitchins, 5 Barb. 666, the defendants bound themselves, “at the expiration of the lease, to surrender up possession of 'the premises in the same condition they were in at the time of making the lease, natural wear and tear excepted.” The court, after a thorough '-and extended consideration of the subject, held that the tenants were not bound to put up new buildings in ' the places of those destroyed by fire, distinguishing the case from those wherein covenants to repair are made. In Wainscott v. Silvers, 13 Ind. 497, it was held that a tenant is not answerable, in the absence of an express ••agreement, for the destruction by accidental fire of buildings occupied. This case is clearly distinguishable frond- those wherein there is an agreement to keep leased property in repair. There are many cases holding that under contracts containing such a covenant 'the tenant wais-bound to restore the buildings, if they ' were destroyed by fire. See David v. Ryan, 47 Iowa, 642; Van Wormer v. Crane, 51 Mich. 363, 16 N. W. Rep. 686.

Appellee cites and relies upon the case of Drake v. White, 117 Mass. 10, and Harvey v. Murray, 136 Mass. 377. In the first case the contract was as follows: “Received of John E. Drake one Morris & Ireland fireproof safe, which we promise to deliver' the same to ' said Drake, or its equivalent in money, on payment of a certain note signed .by said Drake.” The property was destroyed without fault of the defendants! The court says: “In the present case the parties 'have reduced their contract to writing, and have omitted to attach to the defendants’ liability for the property any limitation whatever. On the contrary, their express promise is to do one or the other of two things, — either ‘ to return the property specifically, or to pay for it in money.” The conclusion is based upon this expressed agreement. In this ca.se we have no agreement to return the property or its equivalent in money. In the other case, defendant rented a piano and agreed “to return'it in as good order as when received, customary wear and tear excepted.” The piano was injured by inevitable accident. The court says: “This case falls fully within the decision in Drake v. White, 117 Mass. 10. Indeed, the mention in the contract now before us that customary wear and tear are excepted from the defendant’s agreement furnishes an additional reason for holding that injury from inevitable accident is not excepted.” In our opinion those cases are clearly distinguishable from each other. In the former the property was delivered as security for the payment of a debt, under an expreiss agreement that it, or its value in money, should be returned on payment of tibe debt. That was a contract to be absolutely liable; but not so in the latter case, nor in this one. We have quoted the entire opinion in the latter case, which is grounded solely upon the former, through a misapprehension, we think, of what was decided in the former. While it is identical with this, as to the question involved, we do not think it is entitled to weight as authority, nor do we think that the exception expressed in that or in this contract is any reason for holding the appellants liable for loss from inevitable accident. Inquiring, as we do, for the intention of the parties with respect to the return of this property, we cannot believe that either party understood himself as standing as an insurer to the other. The plaintiff agreed to furnish the property for use for one year, in return for the rent to be paid. It would haidly be claimed that plaintiff is guilty of a breach of this contract by failing to furnish the property for use, because of its destruction without fault on his part; yet it does not seem that the destruction of the property should be a termination of this, contract as to one party more than to the other. Plaintiff’s obligation to furnish the property for use is quite ais explicit as is defendants’ obligation to return it. There was no adequate consideration, moving to the defendants, as insurers of the property. The use and the rent were equivalent. Therefore, defendants would have nothing for this extraordinary liability, — a liability that should not, and, we think, would not, be left to doubtful construction, if intended, but would be plainly expressed in the contract. We are of the opinion that the defendants are not liable, under this contract, for the destruction of the prop'erty without fault on their part, and therefore that the court erred in giving the instructions complained of. — Reversed.  