Gibson v. Perry

Ewing, Judge, delivered the opinion of the court. The law of this case has been long settled, and is supported by reason as well as authority. The obvious principle, upon which the question has been determined by the adjudged cases, is that of an express covenant on the part of the lessee to pay the rent; that, having by his own contract created a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. (15 Mo. 469.) In some of the earlier English chancery cases there was some inclination to relieve the lessee from the consequences [247] of this covenant to pay rent where the premises had been destroyed by fire. Among these cases is that of Brown v. Quilter, Ambler 619, which is the only one cited by counsel for the plaintiffs in error. In that case, the circumstance upon which relief was founded was the fact that the lessor had insured the premises and received the insurance money after they were destroyed by fire. But that case, as well as that of Steele v. Wright, cited in Doe v. Standham, 1 T. R. 708, which is said to have been to the same effect, have been long since overruled, and a contrary doctrine has prevailed in the courts of equity, as well as courts of law, both in England and America — namely, that a lessee of premises, which are burned by fire, has no relief on an express covenant to pay rent, either at law nr in equity, unless he has protected himself by a stipulation in the lease, or the landlord has covenanted to rebuild. (3 Kent, 467.) The supposed hardship of this and like cases is found to have no real existence when the lease is viewed, as it should be, as a sale of the demised premises for the term for an agreed price. And whenever there is no covenant on the part of the lessor to insure against fire, nor any agreement to repair, the destruction of the property by fire, or any deterioration resulting from that or any other cause, is the misfortune of the lessee; and there is no principle of law or justice that would exonerate him from the charge which he has expressly and unconditionally imposed upon himself. The lessee, in. such cases, has no greater claims for relief than parties to other classes of contracts which, having been deliberately entered into, have, by some unforeseen event or casualty, proved to be unremunerative or disastrous. And the supposed hardship of the case might be urged with equal plausibility as a ground of interference by the courts in almost all cases where, by reason of inevitable accident, one of the contracting parties has not derived the full measure of benefits he promised himself by the transaction. In cases like that under consideration, the same presumption exists and with like force as in other cases of sale of property— [248] namely, that the tenant takes the property subject to every casualty. When the lease is taken, the lessee expressly stipulating to pay rent, he can with no more propriety say he pays the rent unjustly when the premises are destroyed, than he could complain of paying the purchase money of any piece of property of which he might be deprived by accident after buying it and before payment. The cases are analogous. The judgment will be affirmed; the other judges concurring.