Thomas A. Hill vs. William Woodman & als., 14 Me. 38

The action was continued for advisement, and the opinion of the Court afterwards drawm up by Weston C. J. On the twenty-second of June, 1833, the defendants took from the plaintiff a lease of the premises in controversy, for the term of eleven months ; and on the first day of October of the same year, for the further term of five years, at and from the termination of the first lease. Although the term covenant is used in both instruments, die parties did not affix their seals to either. The annual rent, to be paid quarterly, is increased in the second lease one hundred dollars.

In all other respects, except as to time, die stipulations in both are alike. By the first the defendants purchased a leasehold estate for eleven months; and by the second, that estate was extended and enlarged five years. Such was die effect of the second lease. The defendants were, at die time of its execution, in the full possession and enjoyment of the premises, which they were to hold in continuation, until the expiration of the second period. Express covenants for the payment of rent, and for repairs, have been frequently before the Courts; and their effect has been well settled by authority.

The affixing or withholding a seal, cannot vary the intention of the parties, or change the construction. In instruments, however, not under seal, the consideration may be gone into; and much of the argument of the defendants’ counsel turns upon that distinction. What was die consideration for the express promises made by die defendants in the second lease 1 It was die demise, made to them of the premises by the plaintiff, for the further period of five years. They well knew the nature and condition of the estate. It had been in their actual possession for more than four months.

It is not pretended, that any fraud or deception was practised upon them by the plaintiff. The lease was formally drawn, and consists of two parts, interchangeably executed. On the part of the lessor is the demise; on the part of die lessees are many stipulations; among others, not to make or suffer any waste in the premises; and to surrender them up at the end of the term, in as good a condition as they then were, by which must be understood, at the time of the execution of the lease, reasonable use and wearing thereof, or inevitable accident, excepted. The lessor made no stipulation to repair.

That duty was assumed by the lessees. And if the injury, of which they complain, falls within the exception, they exacted no promise of the lessor to make it good. They must abide by such a contract as they have made. They took the premises for better or worse; and they had the most ample means of ascertaining their condition. The injury is directly within the definition of permissive waste. 2 Bl. Com. 281. In Com. Dig. Waste, D. 2, it is put as an example of permissive waste, if a house, ruinous at the commencement of a lease, is suffered by the lessee to become more ruinous.

It is to be remembered, that the stipulation by the lessees, not to make or suffer any -waste, is in both leases, and that the injury of which they complain, happened, -while they were in possession under the first lease, for the want of necessary repairs. We cannot perceive any want or failure of consideration. The demise is sufficient to sustain all the promises, made by the lessees. If they had intended to be holden only so long, as the premises were kept by the lessor in the condition in which they received them, they should have required an express engagement from him to this effect. In Hopkins v.

Young, 11 Mass. 302, cited for the defendants, Jackson J. puts a number of cases, where a party had covenanted to assign and convey a valuable thing, and before the time prescribed for the conveyance, he destroys the thing or renders it of no value, which was adjudged in each case a breach of covenant. Here the plaintiff has done nothing to impair the value of the premises. Nor was the contract on his part an engagement to convey at a future day. The lease was itself a continuance and enlargement of a leasehold interest in an estate, then in the actual possession of the lessees.

Express covenants, to keep the demised premises in repair, and to surrender them in that condition, have been held binding upon {Jie party covenanting, although they have been burnt or destroyed, without any fault in him. With this class of covenants, we have at present nothing to do, except so far as they afford examples of the strictness, with which express covenants in leases have been enforced. But there is no occasion to resort to analogies of this sort. Authorities are to be found directly in point, in relation to covenants to pay rent.

Sergeant Williams, 2 Saunders, 422, note 2, says, where a tenant covenants to repair, casualties by fire or tempest excepted, if he also covenants to pay rent, he shall be holden to pay, notwithstanding the premises may be burnt or blown down. And even assuming, that in such case the lessor is under obligation to repair, and he fails to do so, it has been adjudged that the lessee is bound to pay rent, upon his express covenant. Monk v. Cooper, 2 Strange, 763; 2 Lord Raymond, 1477, same case; Belfour v. Weston, 1 T. R. 310.

But in such case, it seems the lessor is not bound to repair; although he may insist upon the payment of rent. Pindar v. Ainsby, cited in 1 T. R. 312. Weigall v. Waters, 6 T. R. 488. And in Hare v. Groves, 3 Anstr. 687, the same doctrine has been settled in equity, although it had previously been doubted there. In the case before us, the lessees have made an express promise to pay rent; and we find nothing to relieve them from the obligation it imposes. Judgment for plaintiff