Peck v. Scoville Manufacturing Co.

Waterman, P. J. The rule that where there is an inconsistency, the written portions of a contract will prevail over the printed, has no application where there is no inconsistency and does not do away with the rule that effect is, if possible, to be given to every portion of the contract. There is no necessary inconsistency between the written and printed portions of this lease. King v. Driss, 5 Robertson (N. Y.), 521. Appellee was bound to restore the premises in good order, “ loss by fire or inevitable accident or ordinary wear excepted.” A window broken by a stone accidentally kicked by a passing team is not broken by inevitable accident. The kicking of the stone, so far as appellee is concerned, may have been inevitable, but not the breaking of the window; that might have been protected by a blind or wire netting. The burden of proving that the window was broken by inevitable accident was on appellee; this it failed to do. The judgment of the Circuit Court is reversed and the cause remanded. Reversed and remanded.