Fowler v. Payne , 49 Miss. 32 ( 1873 )

Tarbell, J.,

delivered the opinion of the court:

The questions in this case arise out of a written contract of which the following is a copy : “ In purchase of building, known as the Stonewall Bar and Billiard Saloon, on Lee street, in the city of Meridian, Miss., by the undersigned, on this 5th day of November, 1867, the parties agree : They are joint and equal owners in said property, and the same is to be occupied and rented by S. B. Payne, for the term of five years, at one hundred dollars per month. Fifty dollars per month to be paid-to J. N. Fowler, (the other joint purchaser,) payment to be made by said Payne of one-half rent quarterly, in United States treasury notes or current funds. If either one of the above parties conclude to sell his interest in said property, he hereby binds himself to give the other preference as purchaser of the same. Rent of this property to commence on the day we get possession of the same. Each party is to pay one-half the amount due upon deed of trust under which the property was sold, and half of all other expenses incurred in making said purchase, the whole debt amounting to $4000; and each bear one-lialf the expenses of insuring and repairing said property, as may be mutually agreed upon, and also one-half of the taxes, etc. Rent to be paid by said Payne, as above stated, to Messrs. Evans & Ford, attorneys and agents of said Fowler. In testimony whereof, we hereto set our hands and seals, the day and year above written.”

(Signed,) • “I. B. Payne,” [Seal.]

“J. N. Fowler.”\_Seal.]

At the time of this purchase, there was upon this property a valuable brick building, which was destroyed by fire January 23, 1869, up to which date Payne had regularly paid rent to Fowler. Notice of the destruction of the building was given by Payne to Fowler, who refused to contribute anything to rebuild. Fowler had sold or assigned his interest in this contract to Moore, who, sometime after the fire, instituted a suit in his own name, to recover from Payne, rent claimed to be due on his contract. In this action Payne appeared and pleaded. To the pleas there was a demurrer, which was sustained, and thereupon Payne filed his bill of complaint in equity, wherein he set forth the contract; the loss of the building; notice thereof to Fowler; offer and request to rebuild ; propositions to buy or sell; the transfer of his interest by Fowler to Moore; the suit of Moore to collect rent of Payne; payment of rent to date of fire; offer to pay rent on condition of rebuilding ; the unconditional refusal of Fowler to contribute to rebuild; a demand of rent for the whole term.

The complainant prays for “such relief as the nature of the case demands ;” that the suit at law for recovery of rent be enjoined; that an account of rent be stated; that Fowler or Moore be required to contribute, jointly with complainant ,to rebuild, or, in case of their refusal, that said property be sold for partition; and for “such other and further relief as may seem meet, and as in equity and good conscience he may be entitled to,” and that Fowler and Moore be made defendants. The answer of the respondents, Fowler and Moore, admits, substantially, all the allegations of the complainant, but so-states the facts as to present two questions for decision. As to the suit at law, the answer says, there was a demurrer to pleas of defendant; that the demurrer was sustained, with leave to plead over, in thirty days, that within the time allowed to plead over, this proceeding in chancery was instituted, and the suit at law, enjoined, whereby, the answer insists the complainant elected to proceed at law,' and is estopped from prosecuting this action in chancery.

If wrong in this, the answer then insists, thatby the contract, the respondents are not bound to rebuild, and that the complainant is holden for rent for the full term stated in the lease, unconditional!}»', and independently of all other terms or conditions of the contract.

It is further averred in'the answer, that the complainant had as ample means of protecting his rights at law, as in equity, and that the-payment or collection of rent cannot b© restrained by injunction.

There was a motion to dissolve the injunction; that was overruled.

As a further history of this case, it may be added, that it was heard on an amended bill, and the answer thereto; that to the original bill there was a demurrer, which was over, ruled; that complainant was allowed to amend his bill on motion; and, that on application to the Chancellor for leave to appeal from the decree overruling the demurrer to the original bill, and in overruling the motion to dissolve the injunction, was refused.

The case proceeded to a hearing, when the Chancellor made an interlocutory decree, given here nearly entire, because of the somewhat peculiar terms of the contract between the litigants.

“ This case coming on for hearing on bill and amended bill, the answer of the defendants and exhibits * * * the same being submitted to the Chancellor without argument, to be decided by him in vacation * * * and it appearing to his satisfaction that the answer of the .defendants admits the facts alleged in the bill of complaint, and it appearing from the- pleadings and exhibits in said cause, that the said complainant and the said defendant, Fowler, on the 5th day of November, 1867, made a purchase of the lot and tenement. mentioned in said pleadings, and on said day entered into a contract which was duly executed and recorded, by which, xt was agreed that said complainant, and defendant 'Fowler, were e<|«ai owners of said property, and that, the same was to be occupied and rented by said complainant for the term of five years, at a real of one hundred dollars per month, fifty dollars of which was to be paid to said defendant, Fowler, to be pald.quarfcerly. It was further stipulated between said etju&l owners, that if either concluded to sell his interest in said property, he would first give the other the preference as purchaser. It was further provided, that each was to pay one-half the expenses of imm'mp and rqpmrmg. said property, as might be mutually agreed upon, and that each was to bear cae-haif the taxes. If fúr$A&' from the pleadings and exhibits, that the said defendant, Fowler, on the 26th day of May, 1868, conveyed his interest in said property, with the assignment of the rent, by way of mortgage to the defendant, Moore, without first giving to complainant the preference as purchaser. It further appears, that said tenement on the 23d day of January, 1869, was accidently burnt, without fault of either party, and that there was no insurance on the same, and that at the time of said burning, no quarter’s rent was due on said premises, the rent being paid up to about the 19th of November, 1868. It further appears, that said defendants, immediately upon said occurrence, were notified of the same, and in the month of May following were required, in writing, by said complainant, to contribute equally with himself towards rebuilding the same, which request was refused, and that said complainant offered to said defendants to sell his interest to them, or to buy their interest, which was also refused. It further appears, that said agreement between complainant and defendant, Fowler, was duly recorded, and was constructive notice to the said defendant, Moore, of its conditions and stipulations, and that he had also actual notice, and that the rights of the said Moore are governed and controlled by said agreement. It further appears-, that the said Moore commenced his action in the county court of said county, against said complainant in the year 1869, for a half year’s rent, alleged to be due, under and by virtue of said contract, and by said answer also claiming the right to collect said rent quarterly, until the full end and term of said five years, without contributing anything towards repairing or rebuilding said tenement, which said action at law was enjoined by this proceeding. It further appears, that there is no issue of facts between complainant and defendants, but that the allegations of the complaint are admitted or not denied, by the answer; and the court being of opinion that said contract entered into on the 5th day of November, 1867, was entire as to the renting, insuring, repairing said property, and payment of taxes; that the agreements therein were mutual and dependant, that the refusal to repair or rebuild by said defendants, discharged the obligation of the complainant for rent after such refusal; that the words, “as may be mutually agreed upon,” did not so control the obligation to insure and to repair, as to make said agreement to insure and to repair a nullity; but that, the equitable construction in regard to “the mutual agreement” had reference to the character and time of repairs, and the manner and amount of insurance, and that in case of an unreasonable refusal to comply on the part of either of said parties with said agreement, then said agreement would be enforced by a court of equity; that said contract bound said parties to insure at mutual expense, and if by the default of both, said loss occurred, both were mutually bound to repair the loss; that it would be contrary to equity under said agreement to compel the said complainant to pay the rent, after the refusal on the part of defendants to contribute their proportion towards repairing the loss; and after, also, their refusal to sell or purchase; that said complainant is liable to said defendants for the rent until said refusal; and the said defendants are liable to complainant for the loss sustained by him on account of said ■ property remaining unproductive.

“It is further the opinion of the court, that the rights of the said defendant, Moore, being a purchaser with notice, and governed by the rights of said defendant, Fowler, under said contract.

'■‘■It further appears that both of said defendants are nonresidents of the State of Mississippi, and it not appearing from said pleadings and proof that either of said defendants have any other property under the jurisdiction of this court, except said lot mentioned in the pleadings, it is the opinion of said court that the said property should stand as security to both parties until the rights of said parties are fully settled and adjusted.

11 It is further the opinion of the court that the said defendant should be compelled, by the decree of this court, jointly with the said complai.nant, to rebuild; and upon such refusal or neglect to do so, that said lot should be sold for division and partition amongst said parties, according to 'their several rights.

“It is therefore ordered, adjudged and decreed, that this cause be referred to the Clerk and Master of this court to take and state an account between said parties.

“ 1st. To ascertain the amount of rent due under said contract from the said complainant to the said defendant Fowler (or the said defendant Moore), from the last payment of rent previous to said burning, until notice was given said defendants to rebuild, to-wit; in the month of May, 1869; and

“ 2d. That he also take and state an account of the loss and damages sustained by the said complainant, caused by the said defendants refusing and neglecting to contribute their proportion toward rebuilding said tenement, from and after said notice and request, made in said month of May, 1869, to rebuild, until the date of stating said account, and that he make due report thereof to this court.

“It is further ordered, adjudged and decreed, that said lot stand bound as security for the adjustment of the rights of said parties on final decree.

“It is further ordered, adjudged and decreed, that said defendants be allowed sixty days from this date to make arrangements and agreement with said complainant to rebuild said tenement at their mutual cost; that is, one-half of the same to be borne by the said complainant, and the other half by the said defendants, either jointly or severally, as may be agreed upon by them. And that said Clerk and Master summon the parties to this suit personally or by their said attorneys, by previous notice, to be and appear before him at a time and place certain, upon the expiration of said sixty days, for the purpose of agreeing thereon, or refusing the same. And that he make report to this court, etc. And that all other matters and things remain as they are until the coming in of said reports.”

From this decree an appeal was prayed and granted. The errors assigned are, the decree overruling the demurrer to the original bill, the refusal to dissolve'the injunction on motion, and the decree last above quoted.

The first question which presents itself in this case is preliminary in its character, viz.: What is the effect of the appearance of the complainant herein to the suit at law? Did such appeax-ance and plea estop him from invoking the aid of a court of equity? It will be remembered that there was a judgment upon a demurrer, but not a final judgment in that action. Referring to the authorities and precedents, it will be found that the grounds upon which chancery will enjoin a suit at law, vary, according to the condition of the latter,' whether before or after final judgment. If, at any stage of the proceedings at law, prior to final judgment, it shall appear that the rights of the parties cannot be fully’ adjudicated; if the powers of a court of law are inadequate to the justice of the case; if, to any extent, the rights of either party must be sacrificed through or because of the inflexibility of the common law rules; if a court of chancery can give that full, adequate and complete remedy which cannot be obtained in a court of law, then equity may be invoked, and the suit at law enjoined. .Hilliard on Inj. “ Suits;” Eden on Inj. ‘‘ Proceedings at Law.”

The cases cited by counsel for respondents, upon this bi’anch of the case, are, when there was a final judgment at law, and the defendants sought to make the same defense in chancery, without showing that the judgments were procured by fraud, or other ground, on which, in this event, equity will interpose. Such were the cases of 14 Ark., .32 ; ib., 218; 7 Gill, 189; Hill on Inj., p. 165, §§ 28, 29, 32; 2 Johns. Chy., 51; 1 Johns. Cas., 505, etc.

It may be remarked here, that counsel are not understood as pressing the question of jurisdiction, save upon the ground of estoppel by the appearance and judgment on demurrer in the suit at law. The position of appellants upon this point, and upon the whole case, is this : 1. That the appearance of Payne in the action at law was an election of the •forum in which he would litigate the differences between himself and Fowler, or Moore, and that the decision of the demurrer therein was conclusive upon the rights of the parties. 2. That unless there is in the lease an express stipulation that rent shall cease upon the happening of a certain event, the tenant is without relief, either at law or in equity, and must continue the payment of rent to the end of the term; though, if there is an agreement to repair by the lessor, the lessee may have his cross action upon a failure to perform this undertaking.

As our State has not been fruitful of cases of this character, it may be well to define somewhat fully and accurately the law pertaining to all branches of the one under consideration.

It is true, that in the construction of covenants, courts of law and equity are governed by the same rules, and though the non-performance of a properly framed covenant by a lessor, will excuse the lessee from the payment of rent, and though a defense under such a covenant might be effective in a court of law, yet, in the case at bar, there are several grounds of equity jurisdiction not cognizable in the former court. Narrowed to the single question of liability for rent upon refusal to repair, and assuming the parties to stand toward each other only in the relation of landlord and tenant, the contract is obscure and can best be construed and enforced in a court of conscience. Add to this tlje several provisions of the agreement, and the claim for partition, and the jurisdiction of chancery seems to be inore than complete.

The cases to which we are referred in support of the claim that a lessee who has stipulated for the payment" of rent is without remedy or relief, unless there is in the lease a proviso that rent shall cease in a certain event, are, where there was not only no such stipulation, but no agreement to repair even, so that the undertaking to pay rent was absolute, unconditional and without contingency in fact, in law or in equity. Such were all the casos cited on this point.

A few cases are referred to indicating that a covenant to repair is no defense to an action for rent but that the remedy of the lessee, is by a cross action. The decisions from which this doctrine is sought to be drawn are either ancient, or, where the lease and the agreement to repair were by several and separate contracts, at-different dates, reduced to writing upon separate parcels of paper; in fact, several and disconnected instruments ; and by entirely distinct and independent stipulations, neither controled by, nor dependant upon the other. '24 Bark. 39, was one of the last; 13 Wend. 339, was an attempt in a suit between landlord and tenant to set-off rent due against costs in another suit. 1 Kernan 216, was an action for rent, where there had been a partial eviction. 1 Comst. 126, was an action for rent where there was no stipulation, agreement or covenant of any sort to repair, and the court rejected proof of the untenantable condition oi the leased premises, in answer to a demand for rent, and other similar adjudications; but these cases are not, in fact, in point.

Modern and well considered cases, however,- hold, that while the non-observance of covenants to repair may not be the subject of set-off in an action for rent, yet, that the breach of these covenants constitutes a good defense by way of recoupment. This doctrine is fully considered and held in 2 Comst., 283; 38 Ill., 293; 37 Ill., 19; and, particularly, 7 Hill, 53, where all the cases on this point are referred to, and the doctrine is declared, that this defense is admissible at common law upon the principle announced in 4 Wend., 483, and 8 ib., 109. This principle, say the court in 7 Hill, 53, is understood to be, “that in actions of assumpsit to recover damages for the breach of an agreement, the defendant may set up, by way of recoupment, under a proper notice, that the plaintiff has violated the same agreement, and thus defeat a recovery for more than the balance. The rule is One of obvious equity, and is susceptible of ready and convenient application on the trial. It adjusts, by one action, mutual and adverse claims growing out of the same contract, and thus prevents the needless multiplication of suits. In Westlake v. Degraw, 25 Wend., 672, the chief justice, who delivered the opinion of the court, seems to have entertained no doubt that the doctrine of Teooiijpment was applicable to a case precisely like the present. And, we may add, like the one at bar. See also, 3 Hill, 171; 5 ib., 76, and ib., 63.

It- would seem, therefore, that where, in a lease, there are mutual covenants for the payment , of rent and to repair, the breach of the latter, or the damages caused thereby, may be interposed in an action upon the contract for the non-performance of the former.

The statement of this rule, appears to strengthen the grounds of equity jurisdiction in the case before us, by illustrating how far short of full and adequate justice between the parties, upon their contract, a judgment at law would be, especially, when it is remembered, that every quarter would give rise to a repetition of this litigation. But, if it were true, that upon a covenant to repair by the lessor, the lessee could, at law, only resort to a cross action, -the grounds of equity jurisdiction might be made still stronger.

But, it is contended on the part of the appellants, that there is in the contract between these parties no covenant to repair. If this be true, that is an end oi the case. The contract recites, that u each party is to pay one-half the amount due upon deed of trust under which the property was sold, and half of all other expenses incurred in making said purchase, the whole debt amounting to $4000, and each bear one-half the expenses of insuring and repairing said property, as may be mutually agreed upon and also one-half of the taxes.”

As a general rule, contracts are to be construed according to the intention of the parties thereto at the time of entering into it, or, as near thereto, as the language employed and the rules of law will permit. In this case, the parties were not examined as witnesses, and we have to construe this contract by the light we have before us, Was it the intention of these parties, and did they agree, as a basis for this contract, in substance, that, “ as to insurance and repairs we make no agreement; whether we insure or repair we leave an open, undecided matter, to be determined in the future?” Or, did they agree, that, “ we will insure and repair, but the amount of insurance and the company, we defer to another time; and as to repairs, the character, mode, style, cost, time, and all other questions pertaining thereto, we are not now prepared to determine, but we will arrange all this after we get possession, and when more at leisure ? ”

This contract is informal, but its only rational interpretation is, as though it had been written thus: “ It is covenanted and agreed, that each party is to pay one-half the amount due upon deed of trust; one-half of all expenses incurred in making said purchase; one-half the taxes; one-half the expenses of insuring and repairing, as may be mutually agreed upon; ” and this last clause may be expressed in this form: “It is further covenanted and. agreed, that we will insure and repair, each party paying one-half the expenses, but the details of insuring and repairing we will agree upon at a subsequent day.”

Insurance and repairs are modern necessities. Every owner of valuable tenements insures against loss by fire, and repairs are no less essential. Indeed, insurance has become a universal practice, and repairs are necessary to retain tenants and for preservation of property. It is not to be supposed these parties hesitated about either, but only as to amount, time, mode, manner, etc. . Such is the inference from the language used, “ and each .bear one-half the expenses of insuring and repairing, as may be mutually agreed upon.” If this means anything, it means that insurance and repairs were to be undertaken. The phraseology of this clause, like those which precede and follow it, is affirmative. Manifestly, insurance and repairs were in anticipation, and, most certainly so, in view of the rapid growth and future prosperity of Meridian. It was not natural; it was not business like, for these parties to agree they would not insure and repair. The presumptions of prudence, of business, and of the other terms of the contract, lead to the construction adopted.

One other suggestion only will be added on this point: If the agreement between these parties was, not to insure or repair, it would have been so unnatural, so peculiar, so contrary to common practice and usuage, if not extraordinary, that the parties would have disagreed, or, .such plain language would have been employed as to leave no doubt.

In this construction of the contract in this case, a satisfactory rule stated by Parsons in his' work on Contracts, (Yol. 2, ed. 1855, p. 6,) is very clearly followed: “The meaning and understanding of parties to a contract shall govern : * * * But when the intent is plain and manifest and the words doubtful and obscure, it is the duty of the judge to endeavor to find out such a meaning as will best answer the intent of the parties.”

But the construction of the contract herein given, is that averred in the complaint, and not denied in the answer.

If correct in our construction of this agreement, 'the question arises, is a covenant to repair equivalent to a covenant to rebuild ? An affirmative answer to this question follows both upon precedent and reason. Taylor’s Landlord and Tenant, 234, Sec 4, and authorities there cited. Leavitt v. Fletcher, 10 Allen, 119; Allen v. Culver, 3 Denis, 284 ; Bigelow v. Collamore, 5 Cush., 226 ; Philips v. Stevens, 16 Mass., 238; Walton v. Waterhouse, 2 Sand., 422, a, note (2); Abby v. Billips, 35 Miss., 618; Chitty on Con., 336, note 0, etc.

In Leavitt v. Fletcher, the court say: “It has been the established rule of the common law for ages that an express covenant to repair binds the covenantor to make good any injury which human power can remedy, even if caused by storm, flood, fire, inevitable accident, or the act of a stranger.” And in that case a covenant to repair was held a covenant to rebuild. See, also, the cases there cited.

It is said in Allen v. Culver, that there is no doubt but that by a covenant to repair, the lessors are bound to rebuild, in case of total destruction by fire.

• This question was treated in Phillips v. Stevens as so clear as to render a formal opinion unjustifiable.

* The court proceeded to say, however, that “any lawyer, in any village of the commonwealth, could have stated the hazard, (a covenant to repair,) and would have guarded against it, by introducing such an exception, as is now generally adopted in mercantile contracts, í‘fire or other casualty excepted.” And it is added, that “the case of Walton v. Waterhouse, and the cases cited by Sergeant Williams in his note (2) to that case, contain all the law upon this subject; the principle extracted from which is, “that although a man may be excused from a duty imposed upon him by the. law, if he is disabled from performing it without any fault of his own; yet when, by his own contract, he creates a duty or ■charge-upon himself, he is bound to make it good, notwith. standing any accident by inevitable necessity; because he might have provided against it by his contract.” (6 Mass., 63; Aleyn, 26 ; Platt on Covenants, 198, 275, 284, 582.)

Holding that the jurisdiction of chancery is rightfully exercised in this instance; that the contract contains a covenant to repair, and that this is equivalent to a covenant to rebuild ; it only remains to inquire whether the decree of the Chancellor is in accordance with established rules and the equity of the case at bar.

Though the doctrine is intimated, if not approved by Mr. Story, (Eq. Jur., § § 721,727, 728,) it is quite doubtful whether courts of equity will undertake to rebuild, nor has the Chancellor in his decree indicated such a power or purpose, as is contended for by the counsel for appellants. By the express language of the decree, following the terms and spirit of the contract, which was to repair, according to stipulation thereafter to be agreed upon, time and opportunity was given the parties by the Chancellor to negotiate, and failing to agree to rebuild, then partition would be decreed. The claim that there is no relief to a tenant who has stipulated for the payliient of rent, and that he must continue to pay to the end of the term, whatever calamities may befall the property, except so far as it is expressly provided in the lease that rent is to cease on the happening of certain events, is but partially correct.

The cases cited in support of this position embrace two classes, or state of facts. One is when there is no provisions for repairs by either lessor or lessee, and the agreement to pay rent is unconditional; absolute, and without reservation for any cause whatever. The other is, where there is no covenant to repair by the lessor, but the lessee undertakes, absolutely and unconditionally, to pay rent, and to make repairs, except in case of inevitable accident and destruction by fire, without fault of the lessee. In these cases, there is no relief to the tenant, either at law or in equity, by the rules of the common law, nor, in the second class, is there an implied covenant to repair on the part of the lessor. 1 Dyer, 33; 3 John., 44; Comyn. 827; 6 T. R., 650 ; 2 Saund., 422 ; 4 Taunt., 45 ; Ld. Ray., 1477; 1 T. R., 310; 18 Ves., p. 115; and other cases quoted by counsel, ft is otherwise, however, in such a case, by the civil law, and the adoption of the rules of the latter had, in England for a long period, the most earnest advocates, both in the bar and on the bench. See Gates v. Griffin, 4 Paige, 366, where the practice of the civil law is slated, and the history of the struggle to introduce this branch of the latter into the administration of justice in England. The court in that case, say, that, “ a contrary principle, however, finally prevailed in, equity courts'” of that' country, “as well as in the courts of law.” And it must now be considered as settled, both in England and in this State, that a lessee of premises which are burned, has no relief against an express covenant to pay the'-rent, either at law or in equity; unless he has protected himself in the lease, or ih& lítAullord h&s fe And this is the doctrine of a third class of-eases, and by these the case at bar must be determined. -la short, in .case of a lease with covenants for the payment of rent on the one part, and to repair on the other, a refusal to rebuild by the lessor upon the destruction of the tenement during the term, will, in equity, at least, excuse the lessee from the payment of rent, or to such relief as the circumstances may warrant. As to recoupment of damages by the lessee in a suit at law to recover the rent, see § 331, Taylor’s Landlord and Tenant, note 3, p. 230, and the authorities before referred to. That the tenant is entitled to be absolved from the payment of rent, in equity, in case of the destruction of the tenement by fire or other external violence, when the lessor has covenanted to rebuild, and failed toper-form his covenant, see § § 329, 331, 375, 377, Taylor’s Landlord and Tenant, and authorities cited in note 2, p. 274 ; 8 Mass., 63 ; 4 Paige, 355 ; 3 Gray, 323 ; 29 Mo., 245 ; 16 Mass., 240 ; 3 Duel, 464; 33 Barb., 401; 10 Allen, 119 ; 2 Story on Cont., § 908 ; id., 931, Pt. Seq. etc.

As to the power of a court of chancery; to enjoin the collection of rent, even as between landlord and tenant, see the authorities herein cited.

But the case at bar presents several grounds of equity jurisdiction, in addition to those pertaining exclusively to the relation of landlord and tenant. Vide, the several stipulations of the contract; the obscurity of the language in regard to repairs ; the agreement to give the parties the preference to buy or sell; the right of either to sale for partition ; and the recurring quarterly indebtedness for rent, with a corresponding right of action. (2 Story, Eq. Jur., § 852, 859; id,, 644; 1 Paige, 215.)

From the adjudications referred to, the following propositions are evolved:•

1, If a lessee stipulate unconditionally to pay rent, without providing for its suspension in any event, and there is no agreement on the part of the lessor to repair, the tenant is without remedy at law or in equity, and must pay the rent to the end of the term, though the tenement be destroyed by fire or other accident.

2. The same result follows, if the lessee undertakes to re* pair, except in case of destruction, by fire or other inevitable accident, as well as to pay rent. In such case, there is no implied undertaking upon the lessor to repair in any event.

8. Under circumstances, not necessary to be enumerated in the case at bar, the lessee may repair and the courts will enforce the expenses against the lessor. Taylor’s Landlord and Tenant, § 331.

4. Neither is it necessary to state when an apportionment or abatement of rent, upon the partial destruction of the tenement, will be adjudged.

5. Prudence dictates that every contingency, by fire or otherwise, shall be provided for in the lease, but if this be not done, and there is an agreement to repair by the lessor, the lessee has his remedy, as herein indicated, either at law or in equity, in case of the destruction of the tenement by fire or other accident, and a suit for rent.

Suffice it to say, that a covenant to repair by the lessor, will be enforced, either at law as before pointed out, or in chancery, upon principles of equity.

The decree should be affirmed, and the cause remanded for further proceedings.