
    *Joseph M. Linn v. E. C. Ross & Co.
    If a tenant agrees expressly, whether under seal or not, to pay rent, and makes no reservation on account of unavoidable accidents, he is bound to pay the rent for the whole term, notwithstanding the premises in the meantime are destroyed by fire.
    This is an action of assumpsit from the county of Clark.
    The suit is brought on a contract between the parties for the use and occupation of certain premises, and to enforce the payment of certain rents in consideration thereof. ■
    
      The contract is in these words :
    “I, Joseph M. Linn, have leased and let to E. C. Ross & Co. the west division of my new building in the town of Springfield, for two years from the first day of September, 1839, for $300 per annum, payable quarter-yearly. The occupants are to take reasonable care of said leased premises, and not keep more than twelve pounds of gunpowder at any one time -in said store.
    “J. M. Linn,
    E. C. Ross & Co.”
    
      “September 1,1839.
    To the declaration, founded on this instrument, the defendants plead the general issue, and gave notice that they should give in evidence on the trial, in bar of the plaintiff’s action, that they settled with and paid and accounted to the plaintiff for the rents accrued up to and including February 14, 1840; that on February 10, 1840, the said building, including the leased premises, were destroyed by fire, without any fault, negligence, or want of care of the defendants; and that, on the 15th of February aforesaid, the defendants yielded up and surrendered to the plaintiff their unexpired term to the leased premises; that the plaintiff accepted the surrender, entered into the exclusive possession, and hath hitherto exercised acts of exclusive ownership over the premises.
    The cause was submitted to the jury, and a verdict found for the plaintiff for the full amount claimed.
    *The counsel for the defendants moved for a new trial for [413 the supposed misdirection of the jury by the court. The whole controversy was confined upon the trial to the rent accrued after February 14, 1840, when the building was destroyed, as averred in the notice, and admitted by counsel to be without any default or negligence of the defendants.
    W. A. Rogers, for the plaintiff,
    insisted that the contract was express, and therefore, upon well-settled principles of law, the tenant is bound for the rent notwithstanding the destruction of the premises by fire. Comyn on Contracts, 3, 4 ; 2 Bl. Com. 443; 1 Wheat. Sel. 381; Platt on Covenants, 52, 195, 275; 4 Kent Com. 121; Walton v. Waterhouse, 2 Saund. 422, n. 2; Phillips v. Stevens, 16 Mass. 238; 1 Hill. Ab. 165; Fowler v. Bolt, 6 Mass. 67; 3 Kent Com. 465, 467. And the rule holds good whether the contract be under seal or not. Baker v. Holtzapfel, 4 Taunt. 45; Reding v. Hall, 1 Bibb, 536.
    Mason and Torbert, for the defendants :
    The general rule in this country and in Great Britain requires the tenant to pay the rent if he expressly binds himself to do so, though there ajDpear to be cases to the contrary. Ripley v. Wightman, 4 McCord, 447; 4 Paige, 355. But neither justice nor policy will allow the rule to be extended, and hence Chancellor Kent lays it'down as applicable only to express agreements to pay. 3 Kent Com. 464.
    This agreement at most contains nothing but an implied promise. Platt on Covenants, 47; 4 Amer. Com. Law 9, note; Hallett v. Wylie, 3 Johns. 44 ; Winton v. Cornish, 5 Ohio, 447.
   Wood, J.

It appears from the record that the court charged the jury, “ that the agreement on which the action was brought was an express contract for the payment of rent quarterly for the use and occupation of the building leased, and, being express, the defendants were not released from their obligation by the destruc414] tion of the building by fire on *February 14, 1840, though without the fault of the defendants.”

This instruction of the court is supposed to be erroneous, a-nd our investigation is resolved into the inquiry, whether the agreement to_ pay the rent, which is the basis of the action, is express or implied. For if it be express, whether under seal or by parol, whether the action be covenant or assumpsit, the destruction of the leased premises by inevitable accident, does not discharge the lessees from their liability to pay the rent. This is admitted by the defendant’s counsel, and it would be difficult to maintain the affirmative of the proposition against the weight of authority contained in both the English and American reports. 3 Kent Com. 373.

Is this, then, an express contract to pay the rent? An express contract may be defined to be an agreement whose terms are openly uttered or expressed by the contracting parties. In such a case, if the contracting party by his own act creates a charge upon himself, he is held to its performance, and inevitable accident does not excuse him, for it was his own folly that he did not provide against it in his contract. An implied agreement is where the terms of the contract are not expressed between the contracting parties, but the obligations of natural justice, by reason of some legal liability, impose the payment of money or the performance of some duty, and raise a promise to that effect. In the latter case, as the law creates the duty it also provides the exception, for if the party be disabled from performance without his own default, his obligation is discharged.

Is this contract, then, express or implied ? It is signed by both the parties. It expresses the description of the premises leased, the time for which they are to bo engaged, and the consideration, in these words: “For $300 per annum, payable quarter-yearly.’ Nothing is left here to inference; all is'agreed-by the parties themselves. The defendants have leased the store for two years, and agreed to pay the rent, $300, quarter yearly, and as they did. not provide in their contract against inevitable accident, they are not discharged *by the destruction of the store though [M5 without their default.

The instruction to the jury was right, and judgment will be entered on the verdict. Yerdict for the plaintiff.  