Alexander v. Dorsey

By the Court. Lumpkin J. delivering the opinion. This was an action of assumpsit, brought on a promissory note, given for the rent of a store room, commonly called the drug store, in the Town of Griffin. The defendant sought to avoid payment, upon the ground that the plaintiff had entered upon the premises and evicted him therefrom, before the expiration of the term. [1.] Without deciding upon all of the errors alleged to have been committed on the trial of this cause, we feel warranted by the testimony, in assuming that the note sued on, was given for the rent of a store-room, in a building consisting of several stories and divers apartments. And the proof showing that the [14] •whole building was destroyed by fire, the lessee’s whole interest in the property is gone. And it was no eviction in the landlord, to re-enter before the expiration of the term, for the purpose of re-building. To rent land is one thing, but to rent a room in the second or any other story of a house, is another and quite a different thing. By the former, the land itself passes ; by the latter, nothing but what comes strictly within the meaning of the contract, and that is the room, together with the use of a common privy, wood-house, or any other convenience appurtenant to the building. But when the whole is destroyed by fire, it never was intended by the parties, to prevent the proprietor from re-entering the premises for the purpose of re-constructing the row or block upon the ground where the former stood. Woodfall's Landlord and Tenant, 151. Judgment affirmed.