Welles v. Castles

Bigelow, J. There being no covenant on the part of the lessor to keep the premises in repair, the defendant is liable, on his covenant, for the full amount of the rent due at the commencement of this suit, unless he can bring himself within the terms of the proviso in the lease, by which he is exempted from the payment thereof in case of damage to or destruction of the premises occasioned by “ unavoidable casualty.” This phrase is in very common use in leases in this country, and has, as we suppose, a well settled and understood meaning. It does not signify a mere want of repair, arising from lapse of time or improper use of the premises; nor from trespasses or nuisances occasioned by the acts of the tenant or of thud persons. Neither does it include any injuries which may happen by reason of the common and ordinary use and occupation of the estate leased, or of adjoining premises. The term has a much more restricted meaning, and comprehends only damage or destruction arising from supervening and uncontrollable force or accident. By a strict definition, as applied to the subject matter, it signifies events or accidents which human prudence, foresight and sagacity cannot prevent. Such is the philological meaning of the words, and in this sense they are manifestly used in the proviso in the lease. Looking at the connection in which they stand, and applying to them the maxim of construction, noscitwr a sociis, they clearly signify occurrences of an unusual and extraordinary character. The language of the proviso is, “ in case the premises or any part thereof shall during said term be destroyed or damaged by fire or other unavoidable casualty,” that is, by causes like fire, such as lightning, earthquakes and wind, which usually result without any direct agency of the tenant, and which are ordinarily beyond human control. Bigelow v. Collamore, 5 Cush. 226. Mills v. Baehr, 24 Wend. 254. This view of the effect of the proviso in the lease under which the tenant holds the estate is a decisive answer to the defence set up to this action on the covenant for payment of rent. The evidence entirely fails to show a damage to or destruction of the 326 premises by unavoidable casualty, according to any reasonable construction of that term. It proves, at most, only defects and want of repair, arising from omission or neglect to keep the premises and adjoining estates in good order. This the lessor was not bound to do, by any express covenant in the lease ; and there is no covenant implied by law that the premises leased are or shall remain in a condition suitable to be occupied for the purpose for which they are demised. Foster v. Peyser, 9 Cush. 242. For all wrongful acts of the city or of the tenants of adjoining premises, which work an injury and damage to the premises in the occupation of the tenant and his possession thereof, the law furnishes him with an ample remedy against the tortfeasors. But he cannot make those unlawful acts the ground of defence against the claim of the lessor for the rent. Besides; upon the facts as stated in the exceptions, even if the defects and nuisances on the premises were the result of unavoidable casualty, the defendant does not bring himself within the terms of the proviso. It is admitted that he occupied the premises under the lease during all the time for which rent is claimed in this suit. Nor was there any evidence that the premises or any part thereof were actually rendered unfit for use or habitation, which is necessary to be shown in order to exempt the defendant from liability for rent according to the express stipulation of the lease. Exceptions overruled.