Pollard v. Shaaffer

• Citation: 1 U.S. 210,1 L.Ed. 104,1 Dall. 210,1 Am.Dec. 239
• Parties: Pollard v. Shaaffer No. ____
• Decision Date: 01 September 1787
• Court: United States Supreme Court

1 U.S. 210

1 Dall. 210

1 L.Ed. 104

Pollard v. Shaaffer

No. ____.

Supreme Court of Pennsylvania

September Term, 1787

Covenant. The Plaintiff, and one Martha Green (now deceased) made a lease by indenture, dated the 1st of March 1773, of a Sugar House &c. to John William Hoffman and his assigns for five years at L. 70. per ann. payable quarterly. The Lessee covenanted for himself, his executors, administrators, and assigns, to keep the demised premisses in good repair, and to deliver them up to the Plaintiff, at the end of the term, in such good repair &c. John William Hoffman assigned the lease to the Defendant, who entered into the premisses. The breach alledged in this action was, that the Defendant had not paid L. 35. rent in arrear for the last half year, nor delivered up the premisses at the end of the term, to wit, the 1st of March 1778, in good order and repair; but that the roof, window-shutters, floors &c. of the Sugar house were in decay, destroyed &c.

The Defendant pleaded performance of covenants, payment, and that an alien enemy, to wit, the British army, commanded by general, Sir William Howe, on the 1st of September 1777, had invaded the city of Philadelphia, had take possession of the premisses, and held the same until the end of the term, and afterwards; and that during the period they held possession, they had committed the waste and destruction &c.

To the last plea, the Plaintiff demurred generally; the Defendant joined in demurrer, and issue &c.

The Demurrer was twice argued, on the 27th of June 1786, and on the 15th of April 1787, by Coxe, Lewis, and Wilson for the Plaintiff; and Ingersol, Wilcocks, and Sergeant for the Defendant: And, on the 6th of October, The Chief Justice pronounced the judgment of the Court; Mr. Justice Rush having declined to give any opinion, as he had been of counsel with the Plaintiff in this cause before he took his seat upon the bench.

M'Kean, Chief Justice.

Two questions were made in this cause: 1st, Whether the Defendant as assignee of the lease, is bound by the covenant to repair, as well as the lessee? And 2ndly, Whether the special matter pleaded, is sufficient in law to bar the Plaintiff?

With respect to the first question, we are clear in our opinion, that the covenant to repair, and to deliver up the demised premisses in good order and repair, runs with the land, being annexed and appurtenant to the thing demised, and shall bind the assignee as much as the lessee, even if the assignee were not named by express words, on account of the privity; but in the case at bar the assignee is bound by express words, and, a fortiori, is answerable as well as the lessee. This point has been fully settled in Spencer's case, 5 Co. 16. b. and 1 Salk. 199. 2 Levinz. 206. 1 Rolls Abr. title, (covenant) letter M pl. 1, and N. pl. 2. Vin. Abr. 6 vol. pa. 411. letter M. pl. 1. 2. 1 Bacon's Abr. 534. c. 5. and the books cited in these abridgements.

The second question is of great difficulty, and of very great importance in its consequence. We cannot find, that it has come directly before any court in England, or in Europe. We wish, that it had come before abler judges than we pretend to be. However, we must give our judgment; but we do it with more diffidence than has occurred in any case since we have had the honor to sit here.

As there is no positive law, no adjudged case, nor established rule, or order, to direct the court in this point, we must be guided by the principles of the law; by conscience, that infallible monitor within every judge's breast, and the original and eternal rules of justice. For, equity is part of the law of Pennsylvania. 1 Chan. Ca. 141. Grounds and Rudiments of law and equity. pa. 74. ca. 104. Doct. and Stud. lib. 1. cap. 16.

It is agreed, that 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. 1 Inst. 53. b. Brook, Waste, 69. 4 Co. 63 b. Herlakenden's case. Lanlord's Law pc. 158. 278. 286. Fitzherbert's Natura Brevium, Waste, 132. 1st Edition. Kelw. 87.

It is also 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. As in the cases of waste against tenants in dower, by the curtesy, for life, or years, of common carriers, innkeepers &c. of lessees by parol &c. or of a cesser during a war. Aleyn. 27. 4. Co. 84. b. Southcote's case, 2 Leon. 109. and other books.

But, it is contended for the Plaintiff, that the Defendant is obliged to pay the rent, and yield up the tenements in good order and repair, because of the express covenant: and in support of this doctrine have been cited, Doctor and Student. Dialogue 2. chap. 4. pa. 124. Alleyn 27. Stiles 47. S. C. 1 Rolls Abr. 939. S. C. Comyns Rep. 631. 632. 2 Stra. 763. 1 Vent. 185. Plowd. 290. Perkins 738. Brook. title (Covenant) pl. 4. title, Waste, pl. 19. 31. 2 Leon. 189. Dyer. 33. pl. 10. Saunders 420. 2 Vern. 280.

On the part of the Defendant, it is insisted, that the express covenant in this case does not bind against acts of God or Enemies, but only against all other events; because such acts were not in the contemplation of either party at the time of the lease executed. A risque known and insured ought to be complied with, agreeably to the bargain, but not otherwise. 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. That if the law were otherwise, yet in England relief would be had in a court of chancery; and that as no such action had ever been brought, in a case circumstanced as this is, an argument is furnished, that no such action will lie. In maintenance of this opinion were cited: Ld. Raym. 909. 4 Bac. Abr. 369. 370. 1 Rolls Abr. 236. Dyer 56. pl. 15. 1 Blackst. 252. 268. 2 Blackft. 379. 3 Blackgt. 153. 157. Cowper 9.600. Douglass 190. 1 Comyns Digest. 150. Co. Lit. 206. 1 Brown's Parl. cases 526. 528. 15 Vin. Abr. 474. pl. 1. 3 Chan. Rep. 44. 79. 3 Burr. 1240. 1637. Dyer 33. 10. Sir Tho. Raymond 464. 1 Co. 98. Shelly's case. 6 Vin. pa. 407. ca. 1. 3. 1 Cha. Ca. 72. 83. 84. 190.

The books have been thoroughly searched on this head, and the question discussed with great ability on both sides. In shore, little more could be done or said for either party than what has been said and done.

In deciding this intricate and difficult case, it will be of use to state the different powers of the common law courts, and the court of chancery, in England, at the time of the revolution.

The courts of law there are governed by general and established rules, from which they never deviate in any case, be the injustice arising from them ever so apparent; for, they are bound by their oaths to observe the strict rules of law. A court of chancery judges of every case according to the peculiar circumstances attending it, and is bound not to suffer an act of injustice to prevail; and in doing this, it conforms to the spirit and intent of the general rule of every positive law, which always admits of particular exceptions tacitly understood. The jurisdiction and bounds of these two courts are fixed.

In this State, the Judges are sworn 'to do equal right and justice to all men, to the best of their judgment and abilities, according to law.' There is no court of chancery. The Judges here are, therefore, to determine causes according to equity as well as the positive law; equity being a part of the law. Doctor and Student iib. 1. cha. 16. 1 Chan. Cases 141. Grounds of law and equity 74. ca. 104. Indeed the common law is common right, common reason, or common justice. Woods Inst. 4.

Were this point brought before a court of common law in England at this day, I have doubts with respect to what would be the determination. For, it is laid down as law, 'that if a lessee covenanteth to leave a wood in as good plight as the wood was at the time...