Clark v. McCroskey

By the Court—

BROWN, C. J.,

delivering the opinion.

The rent contract in this case was made on the 2d of May, 1864, for eight months, at $1,000 per month. The two first months rent were paid, and during the third month, the tenant was driven from the premises by the Federal army, and the house was afterwards burnt by the army. On the trial the plaintiff moved to strike the defendant’s plea, which set out this as a defence, and excepted to the charge of the Court, because he refused to charge the jury that the tenant was bound for the rent during the whole period, without regard to the destruction of the house by the army. The Court did charge in substance, that notwithstanding this rule of law the Scaling Ordinance of 1865 was applicable to the case, *and that the jury might adjust the equities between the parties under that Ordinance. After the verdict, a new trial was moved for by plaintiff’s counsel upon these grounds alone. There was no objection that the verdict was contrary to the evidence, or that it was without evidence.

On the hearing in this Court, it is urged that the Court erred in refusing to strike the plea, and in refusing to give in charge to the jury the provisions of Section 2267 of the Revised Code, without qualification. When it comes in conflict with no other provision of law, there is no question that the principle laid down .in that section is a sound one: that the destruction of the tenement by fire, or the loss of possession by any casualty not caused by the landlord or from defect of his title, shall not abate the rent contracted to be paid. But in case of a rent contract made between June, 1861, and June, 1865, I see no reason why the Scaling Ordinance does not apply. It must be construed in connection with this section of the Code, and while the rent is not, as a general rule of law, to be abated by reason of the destruction of the tenement, the tenant, when sued upon the rent notes, may, under the Ordinance, in the class of cases to which it applies, give in evidence the consideration of the notes and the value thereof at any time. If the tenement, the rent of which was the consideration of the note, was destroyed by the Federal army, he may show the value of such tenement, after the destruction, as well as before it was destroyed; or in the language of the Ordinance, he may show its value at any time, and the jury may consider this in connection with the other evidence in the case, and may then adjust the equities between the parties, in accordance with the Ordinance above referred to.

I see no reason for making a contract for rent an exception to the general rule laid down in the Ordinance, which has been so often sustained by this Court, in almost every variety of contract made during the period of the war. And as there is no objection to the verdict of the jury on the motion for new trial on the ground that it was contrary to evidence, or without sufficient evidence to .sustain it, I am of *opinion that the judgment of the Court below should be affirmed.