Levi Cook et al. versus Daniel Bisbee Junior et al., 18 Pick. 527

Putnam J. afterward drew up the opinion of the Court. The question is, whether the lease made by Faunce to Russell oas terminated. It is drawn inartificially ; but it must be conitrued most in favor of the lessee, where the words are doubtful. Doe v. Dixon, 9 East, 15. The plaintiffs are the legal representatives of the lessor, and entitled to recover if the lease has terminated. The defendants lawfully claim under the lessee, and are to hold the premises if the lessee could now hold the same against the lessor.

It appears that the lessee had bought the buildings known by the name of the Kingston furnace, of the lessor. It became necessary for the lessee to have the use of the privilege, on which they stood. That is expressly granted by the lease. He was to have all the water, from the 1st of September to the 1st of April, annually. He acquired also the use of the land whereon the furnace and buildings stood, and rights of way, &c. ; and he was to pay $ 10 a year for the privilege. So far there is no difficulty. But for what time were the premises leased or granted ?

The answer, in the words of the lease, is “ so long as the lessee, his heirs and assigns shall keep the furnace and buildings on the premises.” If the furnace and buildings had been destroyed, it would seem to be very clear, that the lessee, or his heirs and assigns, might rebuild, and that he or they could not be considered as terminating the lease because they did not always and continually in fact keep up the furnace and buildings. Such a construction would never have been contended for, probably, on the part of the lessor.

Now the furnace has gone down, but the assignees of the lessee keep the other buildings on the land, and the rent has been paid and accepted up to the year 1833. At that lime it would seem to be very clear, that both parties to the lease, or their assigns, considered it to be in full force. We think it does not appear, affirmatively, that the defendants have abandoned the furnace. The defendants have offered to pay the rent since that time; but it has been refused by the plaintiffs.

Now the inference from that circumstance is rather, not only that the defendants have not abandoned, but that they do not intend to abandon the contract. And so long as the plaintiffs may have their rent, it seems to us that the defendants may have and take their own reasonable time to rebuild the furnace ; which time had not terminated, as we think, when the action was brought.