Howeth v. Anderson , 25 Tex. 557 ( 1860 )

Wheeler, C. J.

In order to determine whether the judgment has been rightly rendered for the plaintiff, we must look to the case made by the petition and the special verdict.

In his petition the plaintiff treats the defendants as his tenants rightfully in possession, and seeks to charge and hold them responsible for the injury and loss sustained on the sole ground of carelessness, negligence, and mismanagement on their part, by which he avers the loss was occasioned. There is no averment in terms of a breach of the covenants in the lease; but the gravamen of the complaint is the negligence. The verdict does not support this ground of the action; on the contrary, it fully exculpates the defendants from the charge of negligence. The worst that the verdict establishes is, that the loss was caused by an accidental fire; and the question, as to the principal defendants or tenants in possession is, whether they are liable to make good a loss thus occasioned?

It is deducible from the petition, though it is not averred, that the defendants were holdings over after the expiration of the lease when the loss occurred; and so the jury have found by their verdict. Thus continuing to hold; it was at the election of the plaintiff to treat them as trespassers, or as tenants holding under the terms of the original lease. The receipt of rent accruing after the expiration of the'tenancy would evidence his election to treat them as tenants, and not as trespassers. (Taylor on Landlord and Tenant, § 65, 465, 468; Story on Con., § 934.) Whether we can look to the evidence of such receipt for rent in this case or not is not material, as the plaintiff, in his petition, has elected to treat the defendants as tenants, holding under the terms of the original lease. As such, are they liable for the loss of the premises by accidental, fire? This question was considered in a very elaborate and learned opinion by the Supreme Court of New York, in the case of Warner v Hitchins, (5 Barbour, 666,) upon a lease containing a covenant similar to the present, and it was there held that the tenant was not liable for a loss thus occasioned. The doctrine of this case is adopted by Mr. Taylor in his learned treatise on the American Law of Landlord and Tenant; where the law upon this subject is thus laid down: “When a tenant is under an express covenant to uphold and repair the premises, he is liable to make good all losses, and must even rebuild in case of casualty by fire or otherwise. * * * * If he covenants to keep the premises in repair, and leave them in the same state as he found them, he is merely required to use his best endeavors to keep them in the same tenantable repair in which he found them; for natural and unavoidable decay is no breach of this covenant. But if he covenants to repair generally, this will impose on him a liability to uphold the buildings, without regard to accidents or the necessary decay of the old materials. Where he covenants to surrender the premises at the expiration of the lease, in the same condition they are in at the date of the lease, natural wear and tear excepted, but without any covenant to repair or rebuild, he is not bound, in case the buildings are destroyed by fire during the continuance of the term, to put up new buildings in the place of those destroyed.” (Taylor on L. & T., § 357.) Here there was no covenant to repair; but the covenant of said tenants was “ to re-deliver said mills,” &c., “in as good order as they received them, excepting usual wear and tear, and unavoidable accidents.” According to the authorities cited,-it is clear that upon this covenant the defendants were .not liable for the accidental loss of the premises by fire. 1 think it may at least be questioned whether the terms “unavoidable accidents,” inserted in a contract of lease like the present, would not include the exception of such losses as the verdict of the jury shows the present to have been. It is not like the contract of a common carrier, nor governed, in its construction, to the same extent, by considerations of public policy. Leases are construed, like other written agreements, so as to give effect to the intention of the parties. To arrive at the intention, regard is to be had to the situation of the parties, the subject-matter of the agreement, the object which the parties had in view at the time, and intended to accomplish. A construction should be avoided, if it can be done consistently with the tenor of the agreement, which would be unreasonable or unequal; and that construction which is most obviously just is to be favored, as most in accordance with the presumed intention of the parties. (5 Barb., 669; 4 Humph., 468.) Looking to the terms and subject-matter of the contract, we do not think it reasonable or fair to conclude that the parties contemplated that the lessors were to become insurers of the property against those casualties which ordinary prudence and foresight could not have guarded against; or that it was supposed or intended that they were to become liable to repair the loss in case of the accidental destruction of the property by fire without negligence or fault on their part. The plaintiff did not frame his petition in any such view of the contract or the liability of the defendants, and we do not think it was the view which the parties had of their rights and liabilities in entering into the contract. It would have been a very extraordinary liability for the lessee to assume; and, if intended, it would doubtless have been clearly expressed in the lease. We conclude that, upon the facts found by the jury, the defendants were not liable to make good the loss of the property, and consequently that there was error in giving judgment for the plaintiff upon the verdict.

The defendant Broom has relied upon the further defence, that he was but a surety upon the contract of lease; but as the maintenance of the defence of his principals- necessarily relieves him from liability, it is unnecessary to -consider the grounds of his separate defence. The view we have taken of the case would lead to the rendition of judgment for the defendants upon the verdict. But as that might deprive the plaintiff of having the case revised upon the evidence, as he might have done had the judgment been, adverse to him in the court below, and he might suffer an injustice by the case taking a direction which he was not bound to anticipate, the judgment will be reversed and the cause remanded for further proceedings.

Reversed and remanded.