Davis' Adm'r v. Smith

Scott, J., delivered the opinion of the court. This was an action begun by the appellee, Davis’ adm’r., against the appellants on a sealed instrument of the 18th April, 1848, by which Davis, the appellee, leased to the appellants until the 25th December, 1848, a grist and sawmill and carding machine, situated on Blackwater, in Johnson county, for $225, payable at the expiration of the term. The appellants, the lessees, set up the defence, that at the time the lease was made, the main posts of the building, which supported all the machinery, were damaged and rotten, and the defect was unknown to the lessees and not apparent to ordinary observation; and that in consequence of this defect, the posts gave way shortly after entering under the lease; the building fell and destroyed the machinery. This was communicated to Davis, the lessor, and the appellants, the lessees, abandoned the premises. ' These facts appearing on the trial, the court directed in favor of the appellee and there was a verdict arid judgment accordingly, and the cause was brought to this court. The distinction between a duty created by law, and one created by the party is an established principle of our law. When the law creates a duty and the party is disabled to perform it without any default in him and he has ho remedy over; the law will excuse him. But when the party, by his own contract, creates a charge or duty upon himself, he is bound to' make it good, if be may, notwithstanding any accident, by inevitable necessity, because . he might have provided against it by his contract, and therefore, if a lessee covenant to repair a house, though [470] it be thrown down by a tempest or destroyed by enemies, yet he is bound to" repair it, and if he covenant to pay rent for a house, though it be burnt down, yet he is liable for the whole rent: Lord. R. 1477. “The entire estate or fee is divided into parcels. The tenant is owner of his term, subject indeed to the payment of rent. The landlord is owner of the reversion. The first has agreed to pay his rent as the consideration for his estate in the premises. The other has paid his money for the entire property. Equality is equity, where the act of God or accident destroys the property, it is a loss which ought to fallón each in proportion to his interest:” Tuckers. Com. The analogy attempted to be drawn from the case of a lease of furnished rooms, after proving untenantable, and that of contracts for manufactured articles, not answering the purpose for which they were bought, in which it was held, in the one case, that the rooms might be abandoned, and, in the other, that the articles might be returned; cannot help this case. That furnished rooms, let for a particular purpose, should answer the object in renting them is not unreasonable. Here it is not pretended that the mills did not answer the ends for which they were leased. There was no warranty of the soundness of the materials with which the house was built, and there is no pretence of any misrepresentation or concealment on the part of the lessor. The defect in the posts was an infirmity to which all timbers are subject, and their liability to such a defect was equally in the knowledge of both parties. No one, in leasing his house, is understood to warrant, by implication, that the materials of which it is composed are sound. In a sale of a limited interest in any chattel, there is no implied warranty of soundness on the part of the vendor. The other judges concurring, the judgment will be affirmed.