
    John Bigelow vs. Horace Collamore & another
    In a lease for years of a mill driven by water, it was stipulated, that if the premises, or any part thereof, should be destroyed or damaged, during the term, by fire or other unavoidable casualty, so as to be rendered unfit for use and habitation, the rent reserved, or a part thereof, according to the nature and extent of the injury, should be suspended or abated, until the premises should be put in a proper cc ndition for use by the lessor. The lessor having brought an action for rent, the lessee offered to show that the water-wheel had been in use for several years previous to the lease, and had frequently been out of order and repaired; that, during the term, it broke down, when going at its ordinary rate of speed; and, that upon examination, it was found to be so rotten, old, out of repair, and worn out, as to be almost worthless, and not worth repairing; bat no evidence was offered to show that the condition of the wheel was owing to any special cause, or sudden event, or any accident other than as above mentioned. It was held, that the facts stated, if proved, would not entitle the lessee to a suspension or abatement of the rent.
    In construing a stipulation in a lease for years, that the lessee shall pay the rent reserved, except in cases of unavoidable casualty; neither the declarations of the lessor, as to his understanding of the terms of the lease, nor a deduction made by him from the rent of a former quarter, are admissible in evidence.
    In an action for rent reserved in a lease for years of a mill, which stipulated for a suspension or abatement of the rent, while any part of the premises should be rendered unfit for use by unavoidable casualty; the defence being that the mill-wheel had been so damaged as to be unfit for use, a question to a millwright, called as a witness, whether putting in a new wheel was considered a repair, is irrelevant and inadmissible.
    This was an action of debt for two quarters’ rent, from the 1st of September, 1847, to the 1st of March, 1848, at the rate of five hundred dollars a year, reserved in a lease for years, from the plaintiff to the defendants, of certain premises in Woburn, known as the “Hills Mills.” The case was tried before Bigelow, J., in the court of common pleas.
    The plaintiff, by an indenture of the 1st of September, 1844, leased the premises to the defendants, Horace Collamore and Theodore Collamore, for five years, at an annual rent of five hundred dollars, payable quarterly on the first days of March, June, September, and December, in each year; and the lessees covenanted to pay the rent, except only in case of fire, or other unavoidable casualty, as specified in the lease. . The lessees also covenanted, among other things, that they would keep all and singular the premises in such repair, as the same were in at the commencement of the term, or might be put in by the lessor, or his representatives, during the continuance thereof, reasonable use and wearing thereof, and damage by accidental fire, or other inevitable accidents only excepted, and that neither the lessees, nor their representatives, should require the lessor or his representatives, to make any repairs upon the pre mises during the term, but that all the repairs should be made by the lessees or their representatives.
    The lease also contained the following clause:—“And provided, also, that in case the premises or any part thereof shall, during said term, be destroyed or damaged by fire, or other unavoidable casualty, so that the same shall be thereby rendered unfit for use and habitation, then and in such case, the rent hereinbefore reserved, or a just proportionate part thereof, according to the nature and extent of the injury sustained, shall be suspended or abated, until the said premises shall have been put in proper condition for use and habitation, by the lessor; or these presents shall be determined and ended, at the election of the said lessor or his legal representatives.”
    In the description of the demised premises, it was stated, that the mill on the street had a nine feet breast-wheel, and the south mill a fifteen feet breast-wheel, which latter was entitled to all the water flowing through the canal, except a six-horse power, reserved for the use of the factory belonging to Jacob Richardson.
    The defendants, having filed a specification of their defence, offered evidence that the two wheels mentioned in the lease had been in use in the mills for several years prior to the date of the lease, and during that time had been often out of order and repaired; that the larger wheel was out of order at the date of the lease, and had been so for two years previous, although it was then and had been constantly in use; that in the spring of 1846, this wheel broke down while running at its ordinary rate of speed; that in the fall of 1847, the other wheel also broke down, and was found to be rotten in several of its parts.
    The defendants also offered the testimony of millwrights, who had examined the wheels, that they were so rottsi. old, out of repair, and worn out, as to be almost worthless and that after they had broken down, they were nearly “ wrecks,” and not worth enough to be repaired; but the defendants offered no evidence, that the condition of the wheels, as described by the witnesses, was owing to any special cause, sudden event, or any accident, other than as above set forth.
    
      The defendants further offered in evidence the declarations of the plaintiff, made subsequent to the date of the lease, and some of them made after the wheels had broken down, for the purpose of showing how the plaintiff understood and construed the terms of the lease. For the same purpose, also, they offered in evidence a bill for one quarter’s rent of the premises, next preceding the two quarters sued for, receipted by the plaintiff, in which there was a credit of ¡$50, “ for an allowance on account of wheel.” The evidence was rejected.
    The defendants proposed to ask the millwrights introduced by them as witnesses, as experts, “ whether putting in a new wheel is considered a repair of a mill ? ” But the question was not allowed to be put.
    The plaintiff then offered the evidence of a millwright, who had examined the wheels, in order to show that they could be repaired without difficulty, and at a moderate expense.
    The presiding judge instructed the jury, that the evidence offered by the defendants, as to the condition and state of the wheels, did not show any unavoidable casualty, which would abate any portion of the rent, or suspend the same, and that upon the foregoing evidence the plaintiff was entitled to recover.
    The jury thereupon returned a v&dict for the plaintiff, and the defendants alleged exceptions.
    
      W H. Whitman, for the defendants.
    
      W Brigham, for the plaintiff.
   Wilde, J.

This is an action of debt for rent of certain mills, and the general question is, whether upon the facts proved, or offered to be proved, by the defendants, the rent claimed is by law due according to the terms of the lease from the plaintiff to the defendants. The defendants rely on a proviso in the lease, whereby it is stipulated, that if the premises or any part thereof should, during the term, be destroyed or damaged by fire, or other unavoidable casualty, so that the same should be thereby rendered unfit for use and habitation, then and in such case the rent reserved or a just proportionate part thereof, according to the nature and extent of the injury sustained, should be suspended or abated, until the said premises should have been put in a proper condition by the lessor for use and habitation.

In support of this defence, the defendants offered to prove that the two wheels named in the lease had been in use in the mills for several years prior to the date of the lease, and had been during that time out of order, and often repaired ; and that afterwards, during the term, these wheels broke down, and were so rotten, old, and out of repair, and worn out, as to be almost worthless, and were not worth enough to be repaired. But there was no evidence offered by the defendants, as the report of the case expressly states, tending to show that the condition of the wheels was owing to any special cause, or sudden event, or any accident, other than is set forth in the report; and the only accident therein set forth is, if it may be so called, the breaking down of the wheels, which was caused by their rottenness and want of repair, and certainly not by any unavoidable casualty, of which there was no evidence; and the instruction to this effect is fully supported by the report of the whole evidence, as well that which was offered to be introduced by the defendants’ counsel and rejected, as that which was admitted.

It is contended, that the evidence of the plaintiff’s declarations, tending to prove how he understood and construed the lease, ought to have been admitted, and the evidenée also to prove the fact, that on the payment of a previous quarter’s rent, the plaintiff deducted fifty dollars on account of the wheels. But we are of opinion, that this evidence was rightly rejected, as it could have no legal bearing on the construction of the lease, and might perhaps mislead the jury. The terms of the lease are perfectly clear, and conclusively show, that the defendants were to pay the rent, unless the premises, or some part thereof, should during the term be destroyed or damaged by fire or other unavoidable casualty, so that the same should be thereby rendered unfit for use; for such is the defendants' express covenant. If the plaintiff thought otherwise, his construction of the lease is clearly erroneous, and he is not thereby bound; for it is impossible to hold, that if the wheels broke down by age, decay, and want of repair, which the defendants were bound by the terms of the lease to make, it was caused by an unavoidable casualty. So the fact, that the plaintiff has allowed a deduction from the rent of a previous quarter, is, we think, immaterial. That must be considered as a gratuity, and certainly cannot bind him to make any further allowance.

So the question proposed to be asked of millwrights, whether putting in a new wheel is considered a repair, could have no bearing on the case, however it might be answered. If the damage to the wheels was not caused by any unavoidable casualty, it is very clear that the defendants are bound to pay the rent, although the damage was not owing to any neglect or fault of theirs.

It is a well-settled principle of law, that a lessee for years, who covenants to pay rent during the term, will be bound to pay it, although the buildings maybe destroyed by fire. Fowler v. Bolt, 6 Mass. 63. So when a lessee covenants to keep the demised premises in repair, and at the determination of the lease, to surrender them in as good condition as they were in at the commencement of the term, then if the buildings should be destroyed, although without the default of the tenant, he will be bound to rebuild them, or to make the loss good to the lessor, as well as to pay the stipulated rent. And such were the defendants’ covenants in the lease in the present case. Exceptions overruled.  