NAVE, Surviving Partner, &c. vs. BERRY et al., 22 Ala. 382

GIBBONS, J.' The first duty imposed upon this court, in order to a decision of the various questions presented by the record, is, the

interpretation of this written contract. So far as its stipulations upon its face are concerned, there is little difficulty. The contract is one of lease, not executory in its nature, but executed. The lessor, by its express stipulations, has the right to have the money named in the writing as rent paid at the time it is to become due, certain taxes named paid by the lessees, and at the close of the term to have the premises restored to him. On the part of the lessees, there is no right expressly stipulated; these are all left entirely to the implications of law.

On the part of the lessor, in addition to the express stipulations in his favor, the law implies his right to have the property used in a proper and tenant-like manner, without exposing the buildings to ruin or waste, by acts of omission or of commission; and also, that the premises should not be put to a use or employment materially different from that in which they are usually employed. To the extent of these implied rights on the part of the lessor, the law implies also a corresponding obligation on the part of the lessees.

The lessees have, by implication, the right to possess and enjoy the property during the term specified, and to put it to such use and employment as they please, not materially different from that in which it is usually employed, to which it is adapted, and for which it was constructed. They have the further right to assign or transfer their interests to a third party, to put him in possession of the property, and to clothe him with all the rights and privileges which they possess under the contract.

This right of assignment on the part of the lessee is a common law right, and can only be restrained by express stipulation. 4 Kent Com. 96. On the face of the contract, there is the express obligation on the part of the lessees to deliver up “ the house, with the lots and appurtenances thereunto attached,” at the expiration of the term. There is no obligation to repair, but simply “to deliver up;” meaning to surrender back to the lessor.

The decisions upon this subject make a distinction between an obligation “to repair and deliver up,” and one simply “to deliver up.” Whilst the former binds the obligor to re-build in case of loss by fire during the term, (Phillips v. Stevens, 16 Mass. 238,) the latter is construed to mean simply an obligation against holding over; and if the buildings are burned or destroyed during the term, without the fault of the lessee, he is not bound to re-build, or to pay for the improvements so destroyed. Maggort v. Hansbarger, 8 Leigh 532; Warner v. Hitchins & Leonard, 5 Barbour 666. This distinction we adopt.

In the construction of written contracts, with a view to test the competency of parol evidence, offered for the purpose of showing the whole contract, or some part of it not contained in the writing, we deem it necessary to say, that an incident to a contract forms part and parcel of it.

If the contract, by its construction and legal effect, invests a party with a right, it is the same as if the right had been expressly stipulated in the instrument; as, for instance, if A. buys of B. a bale of goods by sample, at a given price, and the contract in those words is reduced to writing, and signed by the parties; it is an incident to this contract, that the bulk of the bale shall correspond with the sample, and if it does not, the law implies an obligation on the part of B. to pay A. such damages as he may sustain by reason oí any defect in the quality of the goods as compared with the sample; and the contract between A. and B. has to be construed precisely as if these incidents or implications had been incorporated in it.

So, if one sells another anjr chattel, for a given sum, and the contract is reduced to writing, but nothing is said about warranty; the law implies a warranty on the part of the vendor, of his right to sell, and repels it, in the absence of fraud, as respects the quality of the thing sold. And if these incidents, or legal implications, were incorporated in the contract, it would still remain the same. Construing this contract in this manner, we have a key to the solution of nearly every question presented upon this record. The contract on its face is perfect.

The lessor, in consideration of a certain sum of money, and certain things to be done, rents to the lessees certain premises described, for a certain specified term. No ingredient of the contract is wanting. It must be held then to be the actual contract between the parties. Applying the principles that we have thus laid down, in the construction of this contract, and the rules of pleading to the demurrers to the first, second and fourth counts of the plaintiff’s declaration, it will readily be perceived that the court erred in sustaining them.

In each of these counts, the plaintiff sets out the written instrument, alleges the performance of his part of the agreement, and the non-payment of the rent. In the first count, after alleging the non-payment of the rent, he alleges that the buildings were destroyed by fire on the 10th of April, 1850, and that, in consequence of such destruction, thejr were not re-delivered to him, but were wholly lost, and that they were worth two thousand dollars ; and then adds a super se assumpsit. He alleges no carelessness, or neglect or omission of duty, except that the buildings were not delivered.

What, then, is the legal liability on the face of this count? The non-payment of the rent, and nothing more. But conceding this, the count is not bad; because all that is found in it, after the allegation of the non-payment of the rent, must be regarded as surplusage. It is insisted, however, that there is a misjoinder of breaches, and that the count is bad for that reason. This objection is not well taken, because there is no breach at all alleged, except that of the non-payment of the rent.

The allegations which follow this, show upon their face that there is no legal liability arising from them; at best, they can be regarded as nothing more than a statement of the plantiff’s misfortune. This, however, cannot vitiate the part of the count that is good. The rule in pleading, as we understand it, is, that where a contract contains several stipulations, the pleader may in each count assign as many breaches as he pleases: but each breach must be upon a distinct stipulation in the contract.

On the other hand, he cannot assign two breaches in the same count, of one and the same stipulation, because that would be objectionable for duplicity. 1 Chit. PL 336. In the count under consideration, if the plaintiff, in addition to the non-payment of the rent, had shown another stipulation of the contract broken on the part of the defendants, as, for instance, the non-payment of the taxes, the count would still have been good.

The same reasoning applies to the second and fourth counts, and, except as to one aspect of the second count, we do not deem it important to swell this opinion by commenting more particularly upon them. In the second count, after setting out and making proferí of the writing, the pleader goes on to allege, that there was a stipulation between the plaintiff and defendants that the premises should be occupied by Berry, one of the defendants; and then further alleges a breach of this stipulation, in the assignment of the lease to Graham and putting him in possession.

The written instrument set out contains no such stipulation, and we have already seen that this stipulation alleged is directly repugnant to one of the incidents to the written agreement, and is demurrable for that cause. But this part of the count may be demurrable, and yet the part which goes for the rent remain good. The proper mode of pleading to a count framed in this manner, is not by demurrer to the whole count, but only to such portion of it as is bad, and pleading to the balance. If two breaches are assigned on the same stipulation, then a demurrer to the whole count would reach it.

In the progress of the trial, as appears by the bill of exceptions, the plaintiff offered to prove by parol evidence that '"the premises were rented to the defendants, to be occupied by the defendant, Berry, during the term. The defendants objected to the competency of this evidence, and the objection prevailed. It is here insisted that this was competent proof, and that the court erred in excluding it.

We have already stated, that in the construction of written contracts, perfect upon their face, for the purpose of ascertaining whether it is consistent with the writing, its legal implications and incidents should be considered as written out and incorporated in it. If this were done in reference to the contract under consideration, there would then be found in it an express stipulation that the lessees might assign their term to whomsoever they pleased, and that their assignee should have the same right to possess and enjoy that they themselves' had.

The proof offered by the plaintiff would come directly in conflict with this stipulation, and on well settled principles would be incompetent. There was no error, therefore, in its exclusion by the court. The first charge given to the jury by the court was, that although the buildings were burned down on the 10th of April, 1850, the defendants were not liable under the contract, unless the jury were satisfied by the proof that there was negligence on the part of said defendants or said Graham.

The second charge was, that defendants had the right to un-derlet to said Graham the said premises, to be occupied by him and his school; and if the jury believed that said Graham used proper care and diligence in guarding against fire., said defendants were not liable. Both of these charges have been entirely covered by what we have already said, except in one point of view. Conceding the right of the defendants to underlet, had they the right to underlet to Graham for the purpose of keeping there a young ladies’ school or seminary?

The lessees, under their contract, undoubtedly had the right to underlet to any one for the same uses and. purposes to which they themselves could have applied the premises. The question, then resolves itself into this: Had the defendants or the defendant, Berry, the right, under this contract, to have opened a young ladies’ school or seminary on the premises? From what we are bound to know judicially of a school, and from what knowledge we derive from the proof in this cause, we cannot say that such an employment of the promises was not within the scope of the contract.

If the buildings had been used for pyrotechnical experiments, or if they had been put to a use which necessarily accumulated upon them large quantities of highly inflammable substances, we might then hold, that their employment for such purposes was a breach of the contract on the part of the defendants. But we see nothing in the nature of a school for young ladies that should have forbidden the defendants, or either of them, from employing the premises in this manner; and if they could have thus employed them, they could confer the same right by assignment upon another.

There was no error, therefore, in these charges. The three charges asked by the plaintiff' assume a fact as proved, when there was no evidence before the jury tending to prove it, and which, after having introduced his written instrument, it was incompetent for him to have proved by any parol evidence whatever. These charges all start with the assumption, that the jury believe that the defendants stipulated that Berry, or some other one of them, was himself to occupy the premises leased during the term.

We have already shown that parol evidence tending to prove this fact was incompetent, and correctly excluded from the jury. The charges asked, then, were thus far abstract, and for that reason correctly refused. Even if parol evidence had been permitted to go to the jury tending to prove this fact, it would have been the duty of the court to refuse the charges, because it could not, and ought not, to have allowed at any stage of the cause, without the consent of the opposite party, that a written instrument should have been controlled or varied by parol proof.

For the error that intervened in sustaining the demurrers to the first, second and fourth counts in the plaintiff’s declaration, the judgment of the court below is reversed, and the cause remanded.