Hoy v. Holt

• Decision Date: 23 June 1879
• Citation: 91 Pa. 88
• Parties: Hoy v. Holt.
• Court: Pennsylvania Supreme Court

91 Pa. 88

Hoy v. Holt.

Supreme Court of Pennsylvania.

June 23, 1879

June 16, 1879

1. Where in a lease there is an express and unconditional agreement to repair and keep in repair, the tenant is bound to do so, though the premises be destroyed by fire or other accident.

2. When a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract, and therefore if a lessee covenant to repair a house, though it be burned by lightning or thrown down by enemies, yet he is bound to repair it.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ.

WOODWARD J., absent.

Error to the Court of Common Pleas of Centre county: Of May Term 1879, No. 126.

Covenant by John Hoy against William Holt, and others to recover damages for a breach of a covenant in an article of agreement.

In 1870 John Hoy, the plaintiff below and the plaintiff in error, was the owner of a valuable tract of timber land in Snow Shoe township, Centre county, Pa., and also of a portable steam saw-mill, which had been in use for several years, and in need of repairs. William Holt, who lived on an adjoining tract, Jesse Williams and W. M. Holmes, were manufacturers and dealers in lumber. Jesse Williams had previously leased another tract of timber land in said township of Snow Shoe and had used Hoy's steam saw-mill in the manufacture of lumber.

On the 23d day of July 1870, Hoy entered into a written contract with said Holt, Williams and Holmes, whereby Hoy sold to said parties all the white pine, oak and hemlock timber on said tract of timber land.

The agreement contained the following covenant:--

" Said Williams, Holmes and Holt are to have the use of said Hoy's steam saw-mill (now or recently) in the possession of Jesse S. Williams, to saw said timber free of charge; the compensation for the use of said steam saw-mill being considered and included in the price to be paid for said timber as aforesaid. Said Williams, Holmes and Holt are to put said saw-mill in good repair and good running order, and the same so keep, and when all said timber is sawed into lumber and manufactured into shingles (the engine and machinery of said saw-mill to be used for driving the shingle machines), to deliver said saw-mill to said Hoy in reasonable good condition and repair."

In pursuance of said agreement, the said Holt, Williams and Holmes entered into possession of the said tract of timber land, put the steam saw-mill in good repair and working order, and commenced the manufacture of lumber. Subsequently said Williams and Holmes sold their interest in the contract to Holt, who continued the manufacture of lumber in said Hoy's mill until July 7th 1872, when the mill was burned--the same not having been insured by said Hoy or Holt. Holt built a new steam saw-mill on said tract, where he manufactured the residue of the merchantable timber on said tract, or the greater part of it, and removed the mill he had built.

At the time the agreement was entered into, on the 23d of July 1870, the ruling prices for merchantable white pine and oak timber in Snow Shoe township, were above $3.50 per thousand feet, board measure, but a reduction was made by said Hoy in the price of stumpage, in consideration of the necessary repairs to the mill, and its delivery to him in good repair when the said timber was manufactured.

On the 7th of August 1876, Hoy instituted an action in covenant on said agreement, against Holt, Williams and Holmes, to recover the value of said steam saw-mill, or damages for its nondelivery according to the covenant in the agreement.

In charging the jury, the court, Mayer, P. J., inter alia, said:

" In pursuance of the terms of the agreement the defendant entered into possession of the timber lands, repaired the mill, and commenced manufacturing lumber and shingles. Before ‘ all of the timber upon said lands had been sawed into lumber and manufactured into shingles,’ the mill took fire and was destroyed. How the fire originated is unknown. The plaintiff contends that under the covenant, which we have just read to the jury, the defendant is liable to the plaintiff for the burning of said mill, and is either bound to rebuild and replace said mill, as it was before the fire, or respond in damages to the plaintiff to the extent of the loss sustained by the destruction of said mill.

As we interpret and construe said covenant, looking at the entire scope and purport of it, we are of the opinion, and so instruct the jury, that the defendant is not liable for the burning of said mill, unless the evidence in the case satisfies the jury that the burning was caused by the negligence of the defendant, or that of his agents or employees."

The verdict was for defendants, when the plaintiff took this writ and alleged that the court erred in charging as above.

Adam Hoy and A. O. Furst, for plaintiff in error.--Where there is an express and unconditional agreement to repair and keep in repair, the tenant is bound so to do, though the premises be destroyed by fire or other accident: Chit. Con. 336; Add. Con. 374; Paradine v. Jane, Aleyn 27; Brecknock Company v. Pritchard, 6 Term R. 750; Bullock v. Dommitt, 6 Id. 650; Walton v. Waterhouse, 2 Saund. 422; Leeds v. Cheetham, 1 Simon 146; Digby v. Atkinson, 4 Camp. 275; Phillips v. Stevens, 16 Mass. 238; Linn v. Ross, 10 Ohio 412. The case of Pollard v. Shaffer, 1 Dall. 230, decides that destruction of the premises by a public enemy will excuse a tenant from his contract to deliver up the premises in good repair; but it does not decide that destruction by an accidental fire will excuse.

Alexander & Bower and Beaver & Gephart, for defendants in error.--There was no lease of any land or tenement, and, therefore, the saw-mill, which was only a personal chattel and not attached to the soil, was not the subject of lease; it was a thing that could be hired or bailed. So far then as the mill was concerned we contend that it was a personal chattel, and that the contract between the parties placed them in the relative position to each other of bailor and bailee. It was a contract of sale as to the timber, and a contract of bailment as to the saw-mill.

The tenant is not bound to rebuild a house burned accidentally: Pollard v. Shaffer, supra.

Mr Justice PAXSON delivered the opinion of the court, June 23d 1879.

The mill...