Brief Fact Summary. Two parties entered into a lease whereby one agreed to pay a certain amount of rent and return the premises in good order. The lessee assigned the lessee and the assignee occupied the premises. While the assignee was in occupation of the premises, the British army took over the premises.
Synopsis of Rule of Law. "Every contract ought to be construed according to the intention of the parties; and, in the present case, the Defendant had only covenanted to keep the premisses in repair &c. against ordinary accidents, and not against a case, which he could by no possibility prevent."
Issue. Does the fact that the British army took over the premises and caused the waste and destruction shield the lessee and the Defendant from liability?
Held. Yes. The court first observed "if a house be destroyed by lightning, floods, tempests, or enemies, without any concurrence of the lessee, or possibility of his preventing the same, this is no waste in the lessee: For, it is not done by the lessee's negligence, or any wilful act of his; and he cannot be charged with using it improperly, and it would thus have perished, even in the reversioner's possession." Second, it is agreed that "where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there he shall be excused." The court concluded "[e]very contract ought to be construed according to the intention of the parties; and, in the present case, the Defendant had only covenanted to keep the premisses in repair [ ] against ordinary accidents, and not against a case, which he could by no possibility prevent." If the parties had addressed this issue when they entered their agreement, the court hypothesized that they would have agreed the Defendant would not have been liable.
It was held at an early day that a covenant to repair and deliver up the premises in good order and repair, runs with the land and binds the assignee.View Full Point of Law