Rich v. Smith , 121 Mass. 328 ( 1876 )

Gray, C. J.

The whole tenor of the lease clearly manifests the intention of the parties that a loss by fire should not fall upon the lessee. It inserts the usual exception in the covenant to deliver up the premises in good order at the end of the term; and contains the usual proviso that, in case the premises shall, during the term, be destroyed by fire, “ the rent hereinbefore reserved ” “ shall be suspended or abated ” until the premises shall have been put by the lessor in proper condition for use and habitation, or, at his election, the lease shall be determined. This proviso for an abatement of rent extends as well to the case of the lessor’s electing to determine the lease, as to the case of his rebuilding. “ The rent hereinbefore reserved ” can apply to nothing but the rent previously mentioned as having been paid in advance; and the only way of abating such rent is by the lessee’s recovering back a proportionate part thereof. The amount to be so recovered having been assessed upon evidence, and in a manner to which no objection is made, the

Exceptions must be overruled.