Van Wormer v. Crane

Cooley, J. Action of covenant broken. The covenant was contained in a lease of land upon which was a planing-mill and box factory, and by it the lessees undertook “ that they will, at tlioir own expense, during the continuance of the lease, keep the said premises and every part thereof in as good repair, and at the expiration of the term [365] yield and deliver up the same in like condition as when taken, reasonable use and wear thereof and damages by the elements excepted.” The breach assigned was that the planing-mill, etc., was “wholly destroyed or consumed by fire, which said fire was- not caused by the elements,” and that defendants neglect and refuse to rebuild. On the trial when the lease was offered in evidence the defendants objected that the destruction of the buildings by fire and the failure to rebuild constituted no breach of the covenant set out; and the circuit judge so ruled. This ruling necessitated a judgment for the defendants, which the plaintiff brings to this Court by writ of error. The plaintiff relies upon a line of cases in which it has been held that if one covenants unconditionally to repair, or to surrender the premises in good repair, lie is liable for the destruction of buildings not rebuilt by him, though it may have occurred by fire or other accident. Paradine v. Jane Aleyn 26; Chesterfield v. Bolton Com. 627; Walton v. Waterhouse 2 Saund. 422a, note; Bulloch v. Dommitt 6 Term 650; Phillips v. Stevens 16 Mass. 238 ; Tilden v. Tilden 13 Gray 103; Beach v. Crain 2 N. Y. 86; Ross v. Overton 3 Call 309; s. c. 2 Am. Dec. 552; Ely v. Ely 80 Ill. 532; Hoy v. Holt 91 Penn. St. 88: s. c. 36 Am. Rep. 659. But this is not a case of a covenant unconditionally to repair, for the lessees have taken care to make an excep. tion which was probably supposed to be important: And the question now is whether the injury which has occurred is an injury within the intent of the exception. “Damages by the elements” must be conceded to be a somewhat uncertain expression. Strictly speaking, the elements are the ultimate, undecomposable parts which unite to form anything; as the gases which form air and water are the elements respectively of those substances. But the term is used in many other senses, and the definitions of lexicographers would be of little service to us in this case. Anciently it was supposed there were four elements of material things — earth, air, fire and water; and when it came to be known that this classification had no scientific [366] basis, tbe term bad found a place in common speech which it still retains. Injuries to buildings by wind, rain, frosts and heat are spolcen of as injuries by the elements, and all the ordinary decay from natural causes is classed in the same category; Probably no one would make any question respecting this. The injury in this case was caused by fire. No fault in connection with it is charged upon the defendants, and it seems to be taken for granted on both sides that the fire was accidental. We may therefore assume that the fire was one which occurred without traceable fault, and that it is to be classed as a calamity for which no one is responsible except as he may have expressly undertaken to be so. If a flood had destroyed this building the defendants would not be held responsible, because it would have been said the damage is of a sort that must be referred to the elements within the understanding of the parties in entering into this covenant. If a tornado had destroyed it, the same would have been said. We cannot suppose the parties intended to except natural and ordinary decay from wind and rain, and not the more sudden and grievous calamities proceeding from the same sources. The general expression “damages by the elements” will cover all such injuries if it will cover any of them. But an injury by fire is as much an injury by the elements as an injury by wind or flood, and we should be at a loss for any ground on which to distinguish it under this covenant. We have no doubt the parties intended by this exception to include all damages resulting from fire, as much as those attributable to air or water, unless traceable to the agency of man. The purpose was to excuse the lessees in cases where the damages from the causes mentioned had happened without their fault, and a popular phrase was made use of to express this intent, instead of specifying the particular injuries which were in mind. In the popular acceptation of the phrase, injuries by the elements are such injuries as result from the operation of the most common destructive [367] ■forces of nature against which, buildings need to be protected ; and of these fire is the chief. This being our conclusion, the judgment must be held correct, and it will be affirmed with costs. Gbavbs, O. J. and Campbell, J. concurred.