Bussman v. Ganster

• Decision Date: 15 November 1872
• Parties: Bussman <I>et al. versus</I> Ganster.
• Court: Pennsylvania Supreme Court

72 Pa. 285

Bussman et al. versus Ganster.

Supreme Court of Pennsylvania.

November 4, 1872.

November 15, 1872.

November 4th 1872.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 135, to October and November Term 1871.

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A. M. Brown, for plaintiffs in error.—The consideration upon which the obligation to pay rent rests has wholly failed, and the lessees not being bound to rebuild or restore the premises, should not, in equity and good conscience, be compelled to pay rent. When the subject-matter of the demise is entirely destroyed, the lease perishes with it: Taylor's Landlord and Tenant, sec. 520; Kerr v. The Merchants' Exchange Co., 3 Edwards' Chancery Reports 316; Graves v. Berdan, 29 New York Reps. 498. We concede that if the contract was the lease of a lot of ground with a building upon it, and contained an express covenant to pay the rent, or a covenant to repair, the rule would be different. But where, as in this case, the lease is of a store-room upon the premises occupied by the lessor as a residence, and the lessees have not covenanted to repair the premises, the law will excuse them from the payment of rent, upon the accidental destruction of the property demised.

S. A. McClung, for defendant in error.—No particular words are necessary to constitute a covenant to pay rent. It is sufficient if they show an intention of the parties to bind themselves to the performance of the matters stipulated: Smith's Land. and Tenant 96; Royer v. Ake, 3 Penn. R. 461; Giles v. Hooper, Carth. 135. John Rahe and Frank Bussman were present at the execution and delivery of the lease, and they signed it as subscribing witnesses. Henry's execution is therefore good for both, though only sealed by one: Ball v. Dunsterville, 4 Term 313; Bond v. Aitken, 6 W. & S. 165: Bowman v. Robb, 6 Barr 302. The lessees are not released from the payment of the rent after the destruction of the demised premises by fire; Magaw v. Lambert, 3 Barr 444; Platt on Covenants 197; 1 Story's Eq. Jur., secs. 101, 102.

The opinion of the court was delivered, November 15th 1872, by SHARSWOOD, J.

It has not been and cannot be controverted that if the instrument of writing, a copy of which was filed in the court below, was a lease of the land with the building erected thereon, and contained an express covenant to pay the rent, the destruction of the building by fire, even though the lessor had insured the building and had received the insurance-money thereon, constituted no defence, either in law or equity, to an action of covenant to recover the stipulated rent; Pollard v. Shaaffer, 1 Dall. 210; Magaw v. Lambert, 3 Barr 444; Fisher v. Milliken, 8 Id. 121; Dyer v. Wightman, 16 P. F. Smith 427. Even in the case of a lease of chattels with a house, where the chattels are all destroyed without any fault of the tenant, the better opinion seems to be that it affords no ground of defence pro tanto. For in Taverner's Case, 1 Dyer 55-6, there was a lease of land and a flock of sheep at a certain rent, and all the sheep died, though the point was not actually decided, the doctrine was asserted that such loss of enjoyment did not relieve the tenant. This is cited with approbation by Mr. Justice Strong in Workman v. Mifflin, 6 Casey 370, and many other authorities, both in law and in equity, adduced in support of the general principle. Indeed in Fisher v. Milliken, 8 Barr 120, Mr. Chief Justice Gibson lays it down broadly that nothing but a surrender, a release or an eviction can in whole, or in part, absolve the tenant from the obligation of his covenant to pay the rent.

That the agreement in question was a lease of the land as well as of the building thereon, we think is very manifest. It would be a mere refinement to escape the application of a clear rule of law, which may operate hardly on these plaintiffs in error in this instance, to hold otherwise. We are bound to stand super antiquas vias, and not to stray aside into unknown by-paths which may lead we cannot tell where. No form of words is required to constitute a lease: Moore v. Miller, 8 Barr 272. "It is not necessary," says Mr. Justice Coulter, "that the term lease...