
    G. B. Healey and W. B. Carter v. C. R. Tyler and Fred D. Morgan, Appellants.
    1 Landlord 'and tenant: repairs: duty of lessor: covenants. A lessor is not under obligation to repair the property unless such obligation is imposed by the terms of the lease.
    In this case the lease contained a provision that the lessees should keep the premises in as good repair as they were at the time of making the lease, or as subsequently repaired by the lessors, except in cas'e of superior force, inevitable necessity, fire or damage from any other cause than the carelessness of the lessees, persons of their family or in their employ, and it is held that the lessors were under no obligation to repair damages caused by an exceptional flood.
    2 Same: evidence: custom and usage. Where the covenants of a lease are unambiguous as to the duty to make repairs and no such duty is devolved upon the lessor by the terms of the lease, custom and usage can not be shown to impose such obligation upon him.
    3 Same: variance: parol evidence. Where the language of an instrument is plain and unambiguous a party thereto can not allege and prove that he understood it in a different sense from that in which it was understood by the other party.
    
      Appeal from Woodbury District Court. — Hon. Wm. Hutchinson, Judge.
    Tuesday, February 7, 1911.
    In an action to recover rent for business premises in Sioux City, occupied by defendants, under a written lease, the defendants interposed a counterclaim for expenses of freeing the basement of the building on the premises. from water, mud, and debris deposited as the result of an exceptional flood caused by a fresbet in a stream flowing through the city in the neighborhood of the premises, and an additional amount for repairs made necessary by such flood. Demurrers to tbe counterclaim and to an amended counterclaim were sustained, and, on defendants’ election to stand on tbeir pleadings, judgment was rendered for plaintiffs, from wbicb defendants appeal.
    
      Affirmed.
    
    
      H. O. Gardiner, for appellants.
    
      Jepson & Jepson, for appellees. .
   McClain, J.

Tbe portion of tbe lease relied upon by tbe defendants as obligating tbe plaintiffs to free tbe basement of tbe building of water, mud, and debris resulting from a fresbet and to make tbe repairs rendered necessary by sucb fresbet reads as follows: “And tbe parties of tbe- second part (lessees) covenant with tbe parties of tbe first part that they will keep tbe buildings, glass, gates, fences, etc., in as good repair as tbe same now are, or may at any time be placed in by tbe lessor, as tbe same shall require it, damage by superior force, inevitable necessity, or fire, or from any other cause than from tbe carelessness of tbe lessees or persons of tbeir family or in tbeir employ excepted . . . and that at tbe expiration of tbe term of this lease, or forfeiture thereof, they will yield up tbe premises to tbe parties of tbe first part without further notice in as good condition as when tbe same was entered upon by tbe parties of tbe second part, loss by fire, or inevitable accident and ordinary wear excepted.”

I. Tbe interpretation to be given to tbe language of tbe lease in regard to repairs (and for tbe disposition of tbe case it may be conceded that freeing tbe basement from water, mud, and debris left there by a fresbet 11 i jiti/* -\ would come under the head oi repairs) . , _ plainly is that the lessees covenant to keep x ° # x the building in as good a state of repair as that existing at tbe time of tbe lease or subsequently ereated by tbe acts of tbe lessors in the event that the building shall require repair, with the exception that no such obligation on the part of the lessees shall arise with reference to damage by superior force, inevitable necessity, or fire, or from any other cause than the carelessness of the lessees or persons of their family or persons in their employ; that is to say, the lessors may repair if the condition of the building shall be such as to require repairs to be made, no matter what the occasion for repair might be, and, if the lessors shall so repair, that the building must be subsequently kept in-that state of repair in which it is thus placed by the lessors, with the exception specified. On the other hand, the lessees are relieved from obligation to make repairs other than those rendered necessary by their own carelessness or the carelessness of the members of their family or their employees. This construction .is enforced by the last clause quoted, which requires the lessees at the termination of the lease or on forfeiture thereof to yield up the premises in as good condition as when the same were entered upon by said lessees with- the exception of loss by fire or inevitable accident and ordinary wear. It is possible that as to some forms of damage there might be difficulty in the interpretation of -the language used, but as to the particular damage to which this action relates, not alleged to have resulted from any carelessness of the lessees or persons of their families or person in their employ and due to inevitable accident, it is plain that there was no obligation on the lessors to repair the damage or restore the premises to their former condition.' It is elementary that the lessor is under no obligation to make repairs unless such obligation is imposed by the terms of the lease. Underhill, Landlord and Tenant, 511; Piper v. Fletcher, 115 Iowa, 263. Under this rule it is plain that there is nothing in the language used from which a covenant on the part of-the landlords to make repair can be fairly implied. If by inevitable accident the building ceased to be capable of occupancy, the lessees remained liable for rent, and could repair or not in their discretion.

II. It was further alleged, however, by way of counterclaim that the lease was in printed form in common and general use in Sioux City, and that by general custom and usage among the parties to similar agreements in said community it was the duty of the lessees to make the ordinary repairs rendered necessary by the use and occupancy of the premises, and that extraordinary repairs not connected with or caused by such occupancy, and made necessary by the wear and tear of the building and the action of the elements or inevitable accident were to be made by the lessors. As to this allegation of custom and usage, it is' sufficient to say that, as to the matter here involved, the language of the lease is plain and unambiguous. If it had been the • intention that the lessors should be obligated to make repairs, such intention would have been plainly expressed in the language of the instrument having relation to such subject matter. Failure to embody any such stipulation was a clear expression of the intention that no such obligation should rest upon the lessors. The language is plain and unambiguous, and leaves no room for proof of custom or usage adding to the obligations of the lessors. Phillips v. Starr, 26 Iowa, 349; Willmering v. McGaughey, 30 Iowa, 205; Cash v. Hinkle, 36 Iowa, 623; Marks v. Cass County Mill, etc., Co., 43 Iowa, 146; Randolph v. Halden, 44 Iowa, 327; Ryan v. Dubuque, 112 Iowa, 284.

Nothing is pointed out us to any peculiar situation of the parties with reference to the premises nor any conduct of either in apparent construction of the terms of the instrument which would warrant any other interpretation than that to be placed on the plain language used, and, where the language is unambiguous, it is not open to a party to the instrument to allege and prove that he understood it in a different sense from that in which it was understood by the other party. Inman Mfg. Co. v. American Cereal Co., 133 Iowa, 71.

The judgment is affirmed.  