Tarkovsky v. George H. Hess Co.

Mr. Justice Shepard delivered the opinion of the Court. This was a suit brought by appellant to recover back the proportional part of a month’s rent paid by him in advance for premises destroyed by fire during the month for which the rent was paid. The rented premises consisted of all of the third floor and of portions of the second and fifth floors of a building in Chicago. The monthly rent was $276, which, on March 4, 1891, was paid for that month, and on the eleventh day of the same month the building was substantially destroyed by fire. The lease contained the following provision: “ Upon the destruction of said premises by fire, the term hereby created shall cease and determine.” There is ho contention but that the lease became terminated by the destruction of the premises by fire. The lease also provided that the rent should be paid in advance for each month of the term, and it was so paid for the month in question. Can a proportionate part of such payment be recovered back ? We think not. The contract of the parties ought to govern. They provided by their agreement how the rent should be paid, but did not agree that the rent should be abated for any part of the time for which it should be paid in case the premises should be destroyed. Their only agreement with reference to a destruction of the premises, was that the lease should thereupon terminate and, impliedly, that no more rent should accrue. Such was probably the law without any agreement. But as to rent previously paid they made no provision, and we do not feel called upon to make one for them. As we view the case, the risk of the lease being terminated before the time expired for which rent was paid, was upon the party paying. That was in effect what his contract was when he agreed to pay in advance. Even were we to assume that the case of Porter v. Tull, 6 Wash. 408, decided by a divided court, is in point and applicable, we are not inclined to follow it. We think the judgment below in favor of the appellee, denying the right of appellant to recover back any part of the rent paid, was right, and it will therefore be affirmed.