
    Felix v. Griffiths.
    
      Covenant of lease — Destruction of leased property — Common law rule as to loss — Tenant not relieved from payment of rent— Unless protected by provision in lease.
    
    1. At common law, where there is a covenant on the part of the lessee to pay rent for the term, and buildings on the demised premises are destroyed by fire, the tenant is not relieved from the payment of rent unless he has protected himself by a provision in the lease to that effect.
    2. In giving construction to a provision of a statute, or a contract, which attempts to abrogate, or modify, a well established rule of the common law, the scope of the provision should not be extended beyond the plain import of the words used if reasonable effect can otherwise be given to it,
    3. A lease for years, at a rental of $1,500 per year, payable $125 monthly in advance, contained the following clause: “It is agreed by and between the parties to this lease, that in case any building now standing on said premises shall be destroyed or injured by the elements or other cause, so as to be unfit for occupancy, without any fault or neglect on the part of the second party, said second party shall not be liable to pay rent for said premises from and after the time the said second party shall have surrendered possession of said premises to said first party.” After payment, during the term, of a month’s rent, and before the expiration of the month, a fire occurred, without fault of the lessee, which so injured the buildings as to render them unfit for occupancy. Thereupon the tenant surrendered possession and brought action to recover of the lessor a portion of the advance payment, claiming it as still unearned.
    
      Held: That the provision in the lease above quoted reserves no right to recover back any portion of a monthly installment of rent once paid, and that the action cannot be maintained-
    (Decided February 2, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    The defendant in error was plaintiff in the court of common pleas. His action was founded upon a petition of which the following is a copy:
    
      Plaintiff avers that on or about the 8th day of October, 1890, he entered into a written lease with the said defendant, whereby the said defendant leased to him a certain two-story frame building and barns, known as numbers 393 and 395, Ontario street, in Cleveland, Ohio, and also the second story of the frame building known as No. 391 Ontario street in said city, for a term, of seven years from and after October 9, 1890, at a rental of $1,500, a year, payable $125.00 per month, on the ninth day of each and every month, in advance; said lease being recorded in volume 15, page 141, Cuyahoga county record of leases.
    Said lease contained the following clause and agreement:
    “It is agreed by and between the parties to this lease, that in case any building now standing on said premises shall be destroyed or injured by the elements or other cause, so as to be unfit for occupancy, without any fault or neglect on the part of the second party,' said second party shall not be liable to pay rent for said premises from and after the time said second party shall have surrendered possession of said premises to said first party. ’ ’
    Plaintiff avers that on the ninth day of January, 1893, he paid to said defendant the rent for the ensuing month, being the said sum of $125.00, and that on the 13th day of January, 1893, said leased premises were, without any fault or neglect on his part, so destroyed and injured by fire as to be unfit for occupancy, and thereupon quit and surrendered possession of the same to said defendant, and has not since occupied the same or any part thereof. Plaintiff says that at the time of said destruction and surrender of possession of said premises, there was still unearned of the $125.00, which he had paid as rent in advance, the sum of $112.63, which sum defendant refuses to pay, though oft requested.
    Wherefore, by reason of the premises there is due to said plaintiff the sum of $112.63, with interest from January 13, >1893, for which he prays judgment.
    Answer was filed, raising an issue, and the cause coming on for trial, the plaintiff was called as a witness. Objection was interposed to any evidence being given on the ground that the petition did not state facts sufficient to constitute a cause of action. The objection was overruled and exception duly taken. The trial resulted in a judgment for plaintiff below, ' which was affirmed by the circuit court. To reverse these judgments the present proceeding is brought.
    
      Willson <& David, for plaintiff in error.
    When. Griffiths paid the $125.00 rent in advance on January 9, 1893, he was bound by contract to do so.
    On that day the reception of the money by Felix became a vested right.
    It became his money to do as he pleased with it; the payment became a finished and concluded transaction. At common law the tenant was liable for the rent for the whole term notwithstanding the total destruction of the premises.
    When he paid the $125.00 he was liable to pay ; if he surrendered the premises he was not liable to pay any, more or any future rent. The clause looks forward and not backward; it is prospective and not retrospective. If the tenant desired to collect back a part of the money he had paid he should have inserted apt words for that purpose in his contract No such words being in the contract he can recover nothing back. This was an entire sum and for each month the contract is entire and unseverable. There is no law and no contract which severs this entire sum. When once paid it is paid forever; the payment makes an end of that part of the lease. Griffiths’ election to surrender can have no other effect than to leave the parties in statu quo.
    
    
      John B. Began sr. Aaron G. Baldwin, 126 Mass., 485; linn v. Boss, 10 Ohio, 412; Bioh v. Smith, 121 Mass., 328.
    Am. and Eng. Ency. of Law. Volume 12, page 741.
    So the destruction by fire of premises for the rent of which a note has been given does not constitute a defense. Diamond v. Ha/i,ris, 33 Tex., 634; Brooks v. Gutter, 119 Mass., 132; Gay, etc. v. Davey, 47 Ohio St., 397.
    The recorded lease gave the right of possession and nothing but the surrender or cancellation of the recorded lease could divest the tenant of the legal possession and the right to possession. Ooe v. Hobby, 72 New York, 141.
    To effect the surrender of an existing lease by operation of law, there must be a new lease valid and effectual in law. Therefore an oral agreement for a term longer than a year will not operate as a surrender of an existing^ written lease. Taylor’s Landlord and Tenant, section 509.
    
      IJessenmueller & Bemis, for defendant in error.
    Felix now asks this court to reverse the findings of the three lower courts, and gives as a reason why he ought not to be called upon to pay back any portion oi this unearned rent because Griffiths paid the rent money in advance, and that both the lease and the statute (§ 4113) contain the clause “that said lessee shall not be liable to pay rent to the less'or, after the building has been destroyed, ” etc. etc.,; which, it is claimed by him, means that the lessee is absolved from paying rent in the future, but cannot be applied to cases where the rent has been paid in advance, and the destruction of' the buildings and surrender of the possession of the premises occurs thereafter.
    Such a construction would be manifestly contrary to the intention of the parties and against equity. The whole tenor of the lease and of the statute on the point now being considered clearly manifests the intention of the parties and of the statute that the lessor shall not be permitted to retain the rent that has been paid .nor shall the lessee be liable for any rent after the destruction of the building and the surrender of the possession of the premises.
    
    The criterion therefore is the destruction and surrender of the possession. Both, it is true, must concur, but when there has been a destruction of the building and a surrender of the premises as in the case at bar, then it is clear that even though the lessee may have paid rent in advance either for a week, a month, a 3rear, or for the whole term, that fact, in itself, cannot possibly be any reason for permitting the lessor to retain the rent money or a proportionate part thereof which has not been earned as rent at all.
   Spear, J.

The question is as though there were a demurrer to the petition. This pleading asks to recover of the lessor a portion of a month’s rent paid by the lessee upon a lease which, provided for the payment of $1,500.00 per year for the demised premises, payable $125.00 per month, in advance, on the ground that the premises, having been destroyed by fire and injured so as to be unfit for occupancy, had been surrendered by the lessee to the lessor, by virtue of the clause in. the lease permitting surrender on account of fire.

Do these allegations give a right of recovery ?

The common law rule is, that where there is a covenant on the part of the lessee to pay rent for the term, and the buildings are destroyed by fire, the tenant is ' not relieved from the payment of rent unless he has protected himself by a provision in the lease to that effect. And to' show that this is the rule in Ohio, we need but cite Linn v. Ross, 10 Ohio, 412, where the principle is expressed in these words: “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.” The rule, it is said, grew but of a custom founded ripon the consideration that, as the destruction is usually by means of an accident for which neither lessor nor lessee is responsible5 it is but equitable to divide the loss, and, as the lessor must lose the property, the lessor should lose the term, and the further reason that exemption, from loss would tend to make the tenant less careful, and that the public, as well as landlords, is interested in the prevention of destruction of buildings by fire. But whether the rule is believed to be well founded or ill founded, its existence is not open to question.

This being the rule governing the subject about which the parties were negotiating, the further inquiry is as to the effect of the provision of the lease abridging the lessee’s liability, which is a virtual incorporation of section 4113, Revised Statutes. And here we must keep in mind that where it is attempted to abrogate or modify a well established rule of the common law by statute, or by a provision in a contract, the scope should not be extended beyond the plain import of the words used, where reasonable effect can be given to the amendment without such extension. That provision is that, in case any building should be destroyed or injured by the elements or other cause so as to be unfit for occupancy, without any fault or neglect on the part of the lessee, he should not be liable to pay rent after a surrender of possession. It is thus shown that the parties had before them the subject of the lessee’s liability in ease of destruction of the buildings, and undertook to stipulate with reference to that contingency. They also had before them the "fact that the lease required the lessee to pay each month’s rent in advance, which would naturally suggest a condition in which there might be a destruction of the buildings after the payment and before the expiration of the month. In this situation they selected the terms in which the exemption from liability should bé couched, and, in distinct language, limited that exemption to exoneration of the lessee from payment after the surrender, leaving, as it seems to us, a plain inference that where paid before the surrender, the ordinary rule would apply. The proposition now is, that the court should add to this expressed exemption additional words which the parties did not see fit to place in the contract, giving a cause of action to recover back a portion of the rent paid. It is the old story of a party asking a court to do for him that which he had the opportunity to do for himself, but failed to improve it. This lessee was in a position where, if it had been at the time of the making of the contract, agreed that he might reserve a right to recover money that had been paid, suitable words, looking to that end, might have been incorporated in the lease. He did nót so protect himself as to advance payments, but was content to stop short of it. How can a court, acting reasonably, now help him? It is the court’s province to enforce contracts, not to make them. There are two parties to the contention. How can the court say that if further exemption f romliability had been demanded it would have been acceded to by the lessor? Surely we cannot, and the latter, has a right to stand on the contract as it was made, and not be required to accept a. contract which the lessee now wishes he had obtained.

As to the monthly installments the contract is entire, and we think that where an installment was once paid, in conformity with the terms of the contract, it became the money of the lessor absolutely, and was not subject to be recovered back at the election of the lessee.

The precise question has not heretofore been before this court, and but little light is thrown upon it by consulting adjudications of other courts. Attention has been called to several cases in Massachusetts, which counsel of each party insists sustain his position. We incline to think their tendency is in support of the judgments below, but we are not content to follow them.

Our conclusion is, that in the construction of this lease the courts below were in error, and this leads to a reversal of the judgments, and to judgment for plaintiff in error.

Judgments reversed.  