Epping v. Devanny

By the Court. Lumpkin, J., delivering the opinion. The only question in this case is, can a person protect himself by a special contract ? It is axiomatic that the intention of parties to a contract clearly expressed, is the law of'the .contract. Modus et conveniio vincuret legem. Brown’s Legal Maxims, 538.— Chitty on Contracts, 87. Here it was not only the expressed intention of the parties, that rent was not to be paid until the premises were finished, but the completion of the work was made a condition precedent to the right to demand rent, and therefore no rent was due, or could be recovered, until performance of the condition was shown. 8 Vermont Rep., 339. [430] The liability to pay rent was not only “upon condition” that the house should be “put in complete tenantable order and condition,” but it was expressly “understood and agreed that the payment of rent is not to commence until the said work shall be finished.” Now, if the agreement to finish the work and to pay rent were mere covenants, as distinguishable from conditions,- still the covenant to pay is dependent upon the covenant to finish.— 1 Peter’s Rep., 455. It is contended that Epping is bound to pay the rent, because he did not give up the premises at the end of the first three months. This is non sequitur. 1st, Because the option to abandon and give up the lease, provided the work was not completed at the end of three months, was personal to Epping, and in no way affected the condition, which the lessor imposed on himself to finish the work; and, 2d, Because the option to give up the lease only gave the lessee power to give up or surrender an estate — a term of years — so as not to be liable for rent at all, though the work should be finished at some subsequent period ; and that option having been inserted for his benefit, its non-exercise cannot surely put him in a worse condition than he was before. To save himself from the payment of any rent, he must have given up his term; but it does not thence follow that rent is due before the work is finished. Suppose the agreement iu this case did not make the completion of the work a condition precedent to the payment of rent; and suppose, moreover, that the covenant to pay was not dependent upon the covenant to finish, and that each party were to sue the other for a breach of his covenant, it is not pretended that "Doyle could recover of Epping more than the amount of rent which he stipulated to pay. Indeed, counsel do not claim that Epping should be made chargeable for the full consideration for unfinished premises. "Would not Epping be entitled to [431] recover the full amount of rent which he agreed to give for finished premises, as stipulated damages ? In this view of the case, we think it clear for the plaintiff in'error. The only trouble the Court has had in interpreting this contract, is one not insisted upon by counsel, and it is this: Wliat is meant 'by the words “that the payment of rent is not to commence until all the said work shall be finished?” Was it the understanding of the parties that no rent was to accrue till then, or only that the payment was suspended? Upon the construction of the language used, taken by itself, we should hold that the former was the true intent of the instrument; but by reference to similar phraseology in the latter part of the lease, all doubts are removed upon the subject. It was agreed between the parties, that in case of eviction or ouster of the lessee, without fault on his part, “then and from thence the said rent shall cease and determine.” And again, and immediately after, it is provided further “that the payment of rent shall also cease whenever said premises shall become untenantable,” thus showing that “rent” itself, and “the payment of rent” are employed in the contract as convertible terms. Our conclusion, therefore, and judgment, is, that no rent accrued, or was owing under this contract, until the premises were completed. Judgment reversed.