Howeth v. Anderson

A covenant to redeliver a steam saw mill at the expiration of thé term of the lease in as good order as when it was received, excepting the usual wear and tear and unavoidable accidents, does not render the lessor liable in damages for the accidental loss of the premises bjr:fire. It may be questioned whether the terms “ unavoidable accidents,” in a contract of lease like the foregoing, would not embrace the exception of such losses by fire as might occur without fault or negligence on the part of the lessee, and which could not be prevented by the use of ordinary care. A contract of lease is unlike the_ contract of common carrier, nor is it governed in its construction, to the same extent, by considerations of public policyi See the opinion of the court for remarks concerning the rules for the construction of contracts of lease, to ascertain the intention of the parties. Where, on the special verdict of the jury determining the material issues of fact, judgmentwas rendered thereon by the District Court for the plaintiff, and on a revision of the cause this court on the law of the case arising upon the facts so found, adjudges that the defendants were entitled to a judgment, the cause being brought up by the defendants without a statement of facts, this court will not render such judgment as ought to have been given below, but Will reverse and remand the cause for further proceedings.

Error from Cherokee. Tried below before the Hon. C. A. Frazer. This was a suit brought by James M. Anderson against Sewell Howeth, William M. Sloan, and Cicero Broom, for three thousand five hundred dollars, as damages, for the destruction by fire of a steam saw mill, a quantity of lumber, a lot of tools, and injury to certain machinery belonging to the mill which was not wholly destroyed, all of which was specially set out in a bill of particulars attached to the petition. As grounds for the action, the petition alleged that on the 26th day of January, 1857, the defendants Howeth and Sloan executed to petitioner their obligation in waiting whereby they rented from petitioner his steam saw and grist mill and fixtures, also three yoke of oxen and the carry-log, and every article usually used about said mills, for the period of two months from the 9th day of February, 1857, and in consideration thereof said “ Howeth and Sloan as principals, and Cicero Broom as security, bound themselves to redeliver said mills, oxen, carry-logs and fixtures to said Anderson in as good order as they received them, excepting usual wear and tear and unavoidable accidents—-and to pay to said Anderson,” &c. The petition alleged that Broom,, although he represented himself and entered into said contract as surety for his co-defendants, was at the time, and continued to be a copartner with them in the renting and use of said mill; a fact which petitioner alleges was then unknown to him. Petition alleged that on the night of the 18th of April, 1857, (after the expiration of the term limited in the lease,) by the neglect, carelessness and actual imprudence of the defendants, (all of whom it is alleged were jointly in possession.) the said mills and fixtures were destroyed .by fire, causing destruction and damage to the other property aforesaid. The special act of carelessness or imprudence charged against the defendants was that, said night being dry and windy, they used about said mills pine torches; and after the mill ceased to run, that they hurriedly left the mills, in consequence whereof the fire resulted, which might have been prevented by the use of lanterns, which petitioner alleges he had provided to. be used about said mills. The defendants demurred generally, and for special grounds of demurrer excepted, because it appears that the • lease, by the terms of the written contract, had expired when the fire occurred. Which special exception with several others which need not be set out here, appears to be comprehended properly in the general demurrer. The defendant Broom answering separately, specially excepted to the "averments in the petition which allege his partnership, because the contract does not restrict him from being such partner; and because the effect of charging him as a principal is to contradict and vary the terms of the written contract.' The defendants answered by a general denial; special traverse of the alleged carelessness, and set up the exception in the covenant that the burning was an unavoidable accident, and which occurred after the expiration of the term limited in the contact sued on. They specially pleaded that when the mill was burned it had been previously, on the same night, redelivered to plaintiff’s agents in like good condition as when it Was received; and that it was a long established custom of said mill, which was well known to the plaintiff, to use torches in and about said mill; and that they Avere used whilst the same Ayas under the control of the plaintiff. Defendant Broom, in addition to the foregoing defences, pleaded that the burning took place several days after the expiration of the lease specified in the written contract sued on, and after the making of a new lease of the mills by plaintiff to his co-defendants, the plaintiff having received the rent therefor, and being estopped thereby from a denial of the same'. Under the instructions of the court the jury found a special verdict as to the matters of fact, as MIoavs, to wit r That the defendants HoAveth and Sloan, by virtue of the Avritten contract sued on, did rent the mill from the 9th day of February, 1857, until the 9th day of April, 1857. That the defendant Broom Avas not a partner at the time the contract was made. That the mill was a steam mill, and Avas run by the agency of fire; was destroyed by fire on the morning of the 19th of April, 1857, some four or five hours after it had stopped running. That the defendants could not have prevented the burning of the mill by extinguishing all the fire in and about said mill at the time they stopped running, and when they left the same. That the defendants did not use more care to prevent the burning of the mill than would be used by a man of ordinary care. That they could not, by any degree of care before they left the mill on the night when it was burned, have prevented the conflagration. That the defendants at the end of the term of renting, continued in possession of the mill, and did run the same nine days thereafter, Avhich was Ayithout the knowledge and consent of the plaintiff. That the defendants did not, either before or after the termina^ tion of said renting, notify the plaintiff that they would abandon possession of the same; nor did the plaintiff at any time demand the possession of the said mill, or give the defendants notice to abandon the same. That the defendants continued in possession of said mill after the termination of said contract for renting, without the consent of the plaintiff. That there was no new contract between the plaintiff and defendants. Also, that “the mill was burned, damages done to the same, nineteen hundred and ninety dollars and fifty cents.” Upon which verdict the court rendered judgment against all the defendants for the amount last aforesaid and costs of suit. From Which the defendants prosecuted'this writ of error, Assigning as grounds of error : 1. The overruling of the demurrers. 2. That the court erred in submitting to the jury in the charge, the question whether, after the expiration of the time of renting specified in the written contract, there was a new contract between the parties ? 3. And that the court erred in not giving judgment on the special verdict, in favor of the defendants instead of the plaintiff. There was no statement of facts contained in the record. The following endorsement appeared on the written contract sued on, and made a part of the petition, to. wit: 11 Rec’d payment in full of the rent mentioned within and for nine days additional rent, $292 58. “ May 21st, 1857. Jambs M. Anderson.”