text:
    Ebenezer H. Stacy, and Another, v. John Graham.
    The defendant, in a letter to the plaintiffs, stated that a fund then in his hands, arising from the sale of a vessel of which they claimed to be the owners, would be held by him “ subject to their order.”

      Held, that the latter was sufficient evidence of their title and of his liability, and that its construction was a question of law that it belonged to the court to determine.
    The rule of evidence, which rejects the proof of any declarations of a witness inconsistent with testimony, unless an opportunity of explanation is afforded to him, is just as applicable when the witness is examined conditionally out of court, as when he is examined upon the trial The authority of this rule has not been shaken by the decision of the Supreme Court in The People v. Moore (15 Wend. 421).
    The possession of a vessel by persons claiming to be its owners, is presumptive evidence of their ownership, and it is only when their title is impeached by contradictory proof that the production of the vessel’s register can be necessary. The possession by the master is the possession of those who appointed and employed him.
    The recalling of a witness after a cause has been submitted to the jury, rests entirely in the discretion of the judge, and his refusal to comply with such a request is not a subject of exception.
    (Before Duer, Campbeií, and Hoffman, J.J.)
    June 9;
    June 19, 1854.
    This action was brought by the plaintiffs, as the owners of the brig Venus, to recover from the defendant the sum of $1,403.07, which the complaint alleged had been received by him as part of the proceeds of the sale of the brig, .under his promise to remit or pay over the same to the plaintiffs.
    The answer of the defendant denied that the plaintiffs were the owners of the Venus, but admitted that he had received the sum mentioned in the complaint from the proceeds of her sale, by virtue of an order given to him by the master, George W. Adams, who, it alleged, was the owner or a part owner of the brig; and set up as a full defence that he, the defendant, was entitled to retain the sum so received under an agreement with Adams, and for the purpose of satisfying certain demands of his own against Adams.
    The cause was tried before Oakley, Oh. J., and a jury, in December, 1853.
    Upon the trial, the deposition of George W. Adams, taken de bene esse, was read in evidence on the part of the plaintiffs, in which the witness testified to the following facts:
    That the plaintiffs were the sole owners of the brig Venus, of which he was the master, and that in the spring of 1850, the brig was condemned and sold at Rio de Janeiro as nnseaworthy; and that 2,496 milreas and 344 reas, part of the proceeds of the sale, were placed by him in the hands of Maxwell, Wright, and Co., merchants at Rio de Janeiro; and that he afterwards gave an order to the defendant on Maxwell, Wright, and Co., under which he, the defendant, recei\*bd the whole sum placed in their hands. That when he gave this order, it was agreed that the defendant should retain from the sum to be received by him, 650 milreas, which he had previously advanced to the witness, and that he should remit the balance to Mrs. Adams, the wife of the witness, by whom it was to be paid over to the plaintiffs. The witness also swore that the order set forth in the complaint was a true copy of the original order on Maxwell, Wright, and Co., which he had given to the defendant.
    When the reading of this deposition was finished, the counsel for the defendant moved to strike out all the questions and answers therein relative to the ownership of the brig Venus, and of the proceeds of her sale, upon the ground that this ownership could only be proved by the production of the Custom-house register, or of a duly authenticated copy. The court denied the motion, and the counsel excepted.
    The counsel also moved to strike out all the questions and answers relative to the agreement between the witness and the defendant, at the time the order on Maxwell, Wright, and Co. was given.
    This motion was also denied, and the counsel excepted.
    The counsel also moved to strike out the question and the answer thereto, whether the order set' forth in the complaint was a true copy of the original order given by the witness to the defendant.
    The court denied the motion, and the counsel excepted.
    The plaintiffs’ counsel then read in evidence a letter from the defendant to the plaintiffs, dated 17th day of September, 1852, which was admitted to be in the defendant’s handwriting, of which the following is a copy:
    “ Office of Jones & Johnson,
    Insurance Brokers, Mo. 90, Wall street,
    Mew York, 17th Sept., 1852.
    “ Gentlemen,—By order from Captain Adams, Messrs. Maxwell, Wright, and Co. has in account credited the undersigned with some money arising from the sale of the Venus, which would have been remitted ere this had I not been otherwise instructed; but now, as Captain Adams has arrived, the amount shall be held subject to your joint order. I believe' the amount to be about 2,4941| 000, but will this evening refer to my account current. Captain Adams is to furnish me with his individual account, and then the balance will be held as above stated.
    “Yours respectfully,
    “ John Graham.”
    Another witness was then examined on the part of the plaintiffs, who produced and proved a calculation in writing, showing that the milreas received by the defendant amounted in dollars to the sum mentioned in the complaint. The defendant’s counsel objected to the reception of.the paper produced in evidence. The objection was overruled, and he excepted.
    The plaintiffs’ case was here rested; and the counsel for the defendant moved that the complaint should be dismissed, upon the ground that there was no legal proof of the ownership of the Venus. The motion was denied, and the counsel excepted.
    The counsel for the defendant then offered to prove, by a witness who was produced and sworn, that Captain Adams, in various conversations with the witness, had admitted that his testimony, as contained in his deposition taken de bene esse, was wholly false, and had been given by him under threats from the plaintiffs, that unless he would sustain their action against the defendant, they would prevent him from having the command of another ship. The counsel for the plaintiffs objected to the testimony so offered, upon the ground that the declarations of Adams out of court, and in respect to which he had not been examined nor cross-examined, were not admissible in evidence to impeach him and contradict his deposition. The court sustained the objection, and the counsel for the defendant excepted to the decision.
    The counsel for the plaintiffs then offered to read in evidence two letters addressed by the defendant. to Captain Adams, several months after the latter had been examined de bene esse, for the purpose of showing that he still retained the confidence of the defendant. The defendant’s counsel objected to this evidence, but the court held it to be competent, and the counsel excepted to the decision. The letters were then read, but it is deemed unnecessary to state their contents.

      The testimony was then closed on both sides.
    After the case had been summed up by the counsel, and the chief justice had charged the jury, the counsel for the defendants offered to recall one of his witnesses, for the purpose of showing the true value of a milrea in American currency. The plaintiffs’ counsel objected, and the judge refused to permit the witness to'be examined, to which refusal the defendant’s counsel duly excepted.
    The chief justice charged the jury (among other things),, that he was unable to discover any ground of claim on the part of the defendant to the balance of the money or fund in question, after allowing for the amount shown by the witness Adams to have been loaned by the defendant to him, which the jury should credit to the defendant, and that they should take into consideration all the evidence, including the defendant’s letters, and that if they believed such evidence, the plaintiffs were entitled to recover for the balance of money in the defendant’s hands ; that in considering the evidence, the credibility of the witness Adams was a question for them, and that if any part of his testimony was contradictory or false, the jury must take that into consideration, and might disregard all he had said; that the jury should take the statements furnished by the witness Acres, and say what parts of it should be allowed or disallowed. To these directions of the court, and every part of them, the defendant’s counsel then and there duly excepted.
    The defendant’s counsel then requested the court to charge the jury as follows, viz.:
    1. The letter written by the defendant to the plaintiffs, on the 17th of September, 1852, is to be construed by the jury. It is a question of fact for the jury—What is the meaning or effect of this letter ?
    2. If the jury do not believe the witness Adams to be credible, they cannot find a verdict upon his testimony.
    The law requires one credible witness at least.
    3. If the jury believe that the brig Venus had been abandoned to the underwriters at the time of the transaction in question with the defendant, and that the witness Adams was acting for them, the plaintiffs cannot recover.
    The court refused to charge the last mentioned propositions —all or any of them, as requested, except as it had already-charged—and to its decision in that behalf, and every part of it, the defendant’s counsel then and there duly excepted.
    The jury retired under the charge as given, and subsequently rendered a verdict in favor of the plaintiffs for $1,249.43.
    The verdict,' by the agreément of the counsel, was taken subject to the opinion of the court at general term;
    The cause was now heard upon a case containing the evidence and the exception's taken on the trial.

      W. C. Noyes, for the plaintiffs,
    moved for judgment on the verdict, and insisted that no valid exceptions had been taken, either to the rulings of the judge upon questions of evidence, or to his charge to the jury. He urged that if the plaintiffs were bound to prove the register of the vessel sold, or to give any documentary evidence in respect to their title, they were at liberty to do so then, and for that purpose he produced the following papers:
    1. A certified copy of the registry of the vessel, dated May 23d, 1848, showing that she belonged to the plaintiffs and John H. Stacy and George W. Plummer, at that time.
    2. Two bills of sale, one by Plummer to the plaintiffs, dated July 1,1848, of all bis interest, and one by John H. Stacy, of all his interest to the same plaintiffs, dated October 4, 1849. These bills of sale are duly proved before a Hew York Commissioner, and show the entire title to have been in the plaintiffs.
    These documents, he contended, were admissible to show that a new trial was unnecessary, and cited Williams v. Wood, 14 Wend. 126 ; Dresser v. Brooks, 3 Barb. 429; Murray v. Smith, 1 Duer, 412.

      J. Graham, for the defendant,
    contended that the exceptions stated in the case ought each and all of them to be sustained by the court, and that a new trial should consequently be granted. He cited Sharp v. United Ins. Co., 11 John. 201; Leonard v. Huntington, 15 Id. 298; People v. Moore, 15 Wend. 419; Same v. Hulse, 3 Will. 309; Amidon v. Wheeler, 3 Hill, 139.
   By the Court. Hoffman, J.

The most important piece of testimony in the case is a letter of the defendant to the plaintiffs, which is as follows:

“ Hew York, 17th September, 1852.

“.Gentlemen,—By order from Captain Adams, Messrs. Maxwell, Wright, and Company have in account credited the undersigned with some money arising from the sale of the Venus, which would have been remitted ere this had I not been otherwise instructed; but now, as Captain Adams has arrived, the amount shall be held subject to your joint order.. I believe the amount to be about 2,4941| 000, but will this evening refer to my account current. Captain Adams is to furnish me with his. individual account, and then the balance will be held as above stated.

“Yours respectfully,

“ John Graham.”

We ai;e of opinion that this recognises an obligation to account- to the plaintiffs, either for the whole amount, or such amount as might remain after an adjustment with Adams. The plaintiffs resided at Gloucester, Massachusetts, and the words, “ which would have been remitted ere this,” can only mean remitted to them. Therefore, as Adams had arrived, and was to furnish an account, the responsibility to-’the plaintiffs for the whole amount, or what should remain when that account was made up, was plainly admitted.

It was the defendant’s duty, also, to have promptly apprised the plaintiffs whether Adams’s account did reduce the amount allowed to be on hand.

The judge was not bound to submit the interpretation of this letter as a question of fact to the jury. Its construction is purely a question of law, arid we have no doubt of the correctness of that which we have given.

Hence, without resorting to Adams’s testimony at all, we consider that the plaintiffs’ case has been made out.

But his testimony, if credible, is decisive. We are of opinion that his credibility was sufficiently left to the judgment of the jury, in the charge of the chief justice.

■ An objection is taken to the ruling of the judge, that he excluded testimony as to subsequent declarations of Captain Adams, that he had testified falsely upon his examination; that he had given it under threats from the plaintiffs. The witness had been examined de bene esse before the trial, and at the time of the trial was absent from the country.

It cannot be denied, that the general rule of evidence prohibits the admission of any declarations of a witness, inconsistent with his sworn testimony, unless he has an opportunity of meeting and explaining them. The Queen’s case, and the other authorities collected in 1 Grreenleaf on Evidence, § 262, establish and explain this rule.

We do not think that the circumstance of the deposition having been taken de bene esse, makes a difference. The de-' fendant allowed the deposition to be réad. Had he applied to the court to put off the trial, on the ground of the discovery of: these declarations, and the absence of the witness, it may be that a postponement would have been permitted. But he may not suffer the cause to proceed, speculating upon his chances of success, and at the close of the trial proffer evidence of this nature.

The case of The People v. Moor, 15 Wend. 421, has been cited, as sanctioning an opposite doctrine. The public prosecutor, upon an indictment for murder, produced a witness by the name of Mansfield. The prisoner then produced a witness, Gook, who testified as to Mansfield’s declarations inconsistent with her evidence. Cook refused to testify on cross-examination, and was committed to jail. She then told a witness that her statements as to Mansfield’s declarations were false, and this evidence was admitted.

' So far as the rule referred to rests upon the protection due to a witness, it is manifest that when Cook was in jail for contumacy in refusing to testify, her right to be protected was justly disregarded. And as to the party producing her, a similar observation applies. He had produced one, who the committal proves was a dishonest witness; and it is further to be observed, that as she had not in fact been cross-examined, her examination in chief was not evidence at all, and ought, upon this ground alone, to have been wholly rejected. At any rate, a case of so peculiar a character is not, in our-opinion, sufficient to. shake a long established and-important rule, of evidence.

There are some other exceptions upon which the counsel for the defendant laid much stress in his argument, to which I shall briefly advert, for the purpose of showing- the grounds, upon which they are overruled.

, The evidence given by Adams as to the ownership of the ■'vessel was properly received, and if he was believed by the jury, was sufficient to. prove the fact. He swore-that the plaintiffs were the sole owners, and that he had navigated the vessel in their employ. His possession, therefore, was the possession of those who, as owners, had employed him. The possession, however, of persons, claiming to be owners is, in all cases, presumptive evidence of their ownership; and it is. only when the title is rendered doubtful by contradictory proof, that the production. of the - register can be necessary. It is true, that in England, it appears, to be held that, those only whose names, appear upon the registry óf a vessel, can be recognised as its owners; and, consequently, when the: title is put at issue by the pleadings, it is only by the production of . the register that it can be established; but this seems to be owing to the peculiar and stringent provisions of one or more acts of-Parliament. There are no similar provisions in our acts of Congress, relative to the registry of vessels; and in this country, and particularly in this State, it has. long been settled that parole evidence,.to prove the ownership of a vessel, may always be received, and may even, in some cases, be received to prove the ownership of a party to the suit, notwithstanding the legal title is shown-by the register to be in other persons (Wendover v. Hogeboom, 7 John. 308; Leonard v. Huntington, 15 John. 298 ; Sharp v. United Ins. Co., 14 John. 201; Thorn v. Hicks, 7 Cow, 697; Hesketh v. Stevens, 7 Barb. 488; Bixby v. Whitney, 8 Pick. 86 ; Venal v. Burrill, 16 Pick. 140; U. States v, Wellings, 4 Cranch. 55; 3 Kent’s Com., 5th ed., pp. 120,121).

I add, that even had the proof of ownership upon the trial ' been insufficient, its defects would have been remedied by the ■ documents that were produced upon the .argument before us, ■ and which, we-agree .with the counsel for the plaintiffs, were, for that .purpose, admissible in evidence.

The motion to strike out all those portions of the deposition of Adams which related to the agreement between him and the defendant, when the order upon Maxwell, Wright, and Co. was given, was very properly denied. The evidence was explanatory of the order, and not at all inconsistent with its terms, and it was in direct support of material allegations in the complaint, which were denied by the answer; and that the agreement was void, because it was not reduced to writing, cannot be pretended. The presiding judge would have committed a strange error had he, by granting the motion, excluded the evidence.

■ Whether the question to Adams, whether the order set forth in the complaint was a true copy of that which he had given, should have been overruled, it is needless to consider, since both the question and the answer were wholly unimportant. The fact that alone was necessary to be shown, was, that it was by virtue of an order from the captain of the vessel that the fund in question had been received by the defendant, and this was distinctly admitted in the answer. Mo proof as to the-order was, therefore, necessary to be given, and its, substance-being admitted, its exact words were immaterial..

We think that the decision of the judge, that the letters written by the defendant to Adams, some months after the deposition of the latter had been taken, were competent evidence, was, under the circumstances, entirely correct. The truth of the statement made by Adams was denied. He was charged with wilful and deliberate falsehood. Hence, that it was competent to show that the truth of his deposition had been admitted by the defendant himself, it is-impossible to doubt. It was, however, for the purpose of justifying this inference that the letters were produced and read; and whether, had the defendant believed that the deposition of Adams was wilfully false, he would have written to him subsequently in terms of confidence and friendship, was a question very proper to be-submitted to the consideration of the jury..

The refusal of the judge, when, by the closing of his charge*, the case had been submitted to the jury, to permit the recall of a witness previously examined, was not a ground of exception. Whether he would allow the witness to- be then: exa-r mined upon the questions that it was said had been inadvertently omitted, or examined at all, rested entirely in his discretion. His refusal,. we see no reason to doubt, was a proper exercise of his discretion; and it is certain, from the nature of the questions that were to have been put to the witness, that it could ,not have operated to the prejudice of the defendant.

One or two exceptions remain that, in our opinion, do not require a special notice. They are overruled as plainly frivolous.

. An objection was taken as to the valuation of a milrea, and especially of the exchange of ten per cent, allowed by the jury, the testimony of Ayres being considered as insufficient. This difficulty could now be remedied in a summary method, but in truth the pleadings remove it.

Tim complaint states that the defendant received, by virtue of the order, the sum of 2,4941| 344 milreas, of the value ' of $1,403.07. The defendant, in his answer, admits, that in or about the month of April, 1851, he received from Maxwell, Wright, and Company, 2,496 milreas and 344 reas, and does not deny the value in dollars. By the contract, he was to deliver this sum to Mrs. Adams, in Massachusetts, deducting his own advance. The value stated in the complaint, is precisely the value of the milreas, as computed by Ayres ; but the jury have valued them at $1,397.07, exchange being taken at ten per cent. The verdict, therefore, needs no alteration as to the principal sum.

But we are of opinion that the allowance of interest is incorrectly made. We find no evidence or admission of a liability to the plaintiffs until the letter of the 17th of September, 1852. The original engagement was to pay the amount to Mrs. Adams, Gloucester.

The correct statement will be to allow interest on the 640 milreas, $364, from the 28th of March, 1850, the date of the advance, to the 1st of April, 1851; to deduct the aggregate from $1403.07, as of that day, and to compute interest' tin the balance to the day of the judgment. If the plaintiffs consent to this reduction, judgment may be entered for them for such amount, but without costs of the appeal; otherwise a new trial must be ordered.

The plaintiffs consenting to the reduction, judgment was rendered in their favor upon the verdict so reduced.


source: Caselaw Access Project

author: By the Court. Duer, J.

license: Public Domain

text:
    Thomas Neilson v. The Commercial Mutual Insurance Co.
    A policy of insurance upon cargo exempted the defendants, as insurers, from all liability for losses arising from “ leakage on molasses or other liquids, unless occasioned by stranding or otherwiseand by a special clause, endorsed on the policy, the insurance was expressed to be “ on spirits of turpentine in cans, packed in boxes, on deck, free from loss by wet, breakage, leakage, or exposure.” In the course of the voyage a heavy sea swept the deck of the vessel, struck the cans and caused them to leak, so that, upon the arrival of the vessel at her port of destination, nearly their whole original contents were found to be lost.

      Held, that the above recited clauses, by their true construction, exempted the insurers from any liability for losses of which “ leakage” should be the proximate cause, although the leakage itself might be occasioned by a peril insured against, and consequently that the defendants were not liable for the loss that had arisen.
    Where a controversy is submitted under the Code, the court can only determine the questions of law that arise upon the facts agreed upon, and has no power to send the cause to a jury for the determination of questions of fact, that, upon the face of the submission, may appear to be doubtful. The court must itself construe the submission.
    (Before Duer, Campbell, and Hoffman, J. J.)
    June 16;
    June 26, 1854.
    This was the submission- of a controversy under § 372 of the Code.
    The following is the statement of facts agreed upon by the parties.

      City omd County of New York, ss.:

    The parties to this controversy hereby mutually agree upon, and submit to this court, the following statement of facts:—■
    First. The defendants herein are a corporation, organized under a charter granted by the Legislature of the State, and are now, and on the 4th day of December, 1852, were, engaged in a general marine insurance business in the city of Hew York.
    Second. On the 4th day of December, 1852, Thomas Heilson, the plaintiff, effected an insurance with.the defendants, and took out a policy for,the. same of $1,300, upon a quantity of spirits" of turpentine, in cans packed in boxes, and at the insured value of $1,300, then stowed, or to be stowed on the deck of the ship “ Jacob Bell,” for the voyage from the city of Hew York to San "Francisco, California, and for the period of thirty days after her arrival there.
    Third. The premium was paid upon the policy by the plaintiff. A copy of the policy issued to him by the defendants is hereto annexed, and made a part of this statement. 1
    Fourth. On the second day of February, 1853, the ship “ Japob Bell,” then being in the regular course of her .said voyage, fn latitude 45° S., longitude 56s W., met with heavy gales and tremendous seas, and at 4 p.m. of that day, she shipped a heavy sea amidships, which started her deck load, stove six boxes of turpeptine, carried fiyp boxes overboard, and .caused it all to' leak more or less.
    On the arrival in San Francisco, it was found that only 141 gallons of the turpentine remained in the cans, the damage and lpss having been .occasioned by the heavy sea .aforesaid, .strik- ' ing the ship .amidships as ahoye stated, causing the cans to" ¡leak.
    Fifth. The insured value of the turpentine shipped was $1,300. The value of the 141 gallons remaining was $246.75, The, value of the five cans carried overboard was $131.57, with expenses added.
    And the defendants received proof of the loss and interest of the plaintiff, on the 25th day of Hay, 1853. The plaintiff; .claims $1,098.94, with interest from the 24th day of .June,1 1853, and if he is entitled to recover, the defendants admit the same to be the amount due him.
    The defendants hereby offer to pay and allow the said sum of $131.57, for the loss of the five .cans carried overboard, as above stated, by the sea, to have the same .effect as an offer in the answer, to allow judgment for that sum, but they deny that iby ,the .terms of their policy, they are liable for .any loss by wet, breakage, leakage, or exposure, or for any other or greater sum, or that they have any other liability than for the five cans aforesaid in the premises.

      And the parties herein mutually pray for the judgment of this court herein.
    Dated New York, April 8th, 1854.
    Judahs & Diokehsoh,

      Attys. Plaintiff.

    War. D. Booth,

      Atty.for Defendants.

    A copy of the policy of insurance was annexed to this statement, but it is unnecessary to state its entire contents. It is sufficient to say that it was a policy upon a cargo, in the usual form and against the usual sea perils, on a voyage from. Philadelphia to San Francisco, and that it contained a clause declaring that the company should “not be liable for leakage on molasses, or other liquids, unless occasioned by stranding, or collision with another vesseland that by a special clause, endorsed on the policy, the insurance was declared to be “ on spirits of turpentine in cans, packed in boxes, on deck, free from loss by wet, breakage, leakage, or exposure.” The right of the plaintiff to recover the loss that was claimed, depended upon the construction to be given to these clauses, in their application to the facts contained in the statement submitted.

      S. B. H. Judah, for the plaintiff, in demanding judgment in his favor, relied upon the following points and authorities.
    I. The clause in the defendants’ policy stipulating the cans of turpentine to be “ free from loss by wet, breakage, leakage, or exposure,” is but a declaration of the principle which exempts the insurers ordinarily from liability for ordinary losses in articles, which, by the quality of the subject, suffer deterioration more or less; and the defendants would, from the customary construction of the policy, have been free from such liability, notwithstanding the clause referred to had not been set out in words in their policy. (1 Phil, on Ins., § 619, 1090, 1091, &c., 3d ed.; 2 Arnold on Ins., § 282, p. 756.) Insurance against perils of the seas does not cover an ordinary loss or deterioration incidental to the nature of the article which may arise from a cause difficult or uncertain to be traced, such as from bad stowing, wastage, or from the article itself, either its perishable nature or its value, depreciating from wet or exposure. This exemption, however, does not extend to an extraordinary loss, caused by shipwreck, storm, or other perils of the seas. (2 Phil. on Ins., § 1468; 2 Arnold on Ins. 282.) The underwriter undertakes to indemnify the insured only against loss caused by the direct operation of the perils insured against, and not against the ordinary wear and tear of the voyage. (2 Arnold on Ins., § 282.) The loss and damage for which the plaintiff seeks a recovery was occasioned by the perils insured against—it was caused by perils of ■ the seas. (Smith’s Mer. Law, 220, Law Liby., vol. xvii.; Abbott on Shipping, 251.) It occurred by the storm of the 2d February, 1853.)
    H. The policy in this case is to be construed the same as other contracts, if possible, to give effect to the intent of the contracting parties, and not according to the strictest meaning . of the words. (Park on Ins. 40 ; Dow v. Whitten, 8 Wend. R. 160; Irwin v. Sea Ins. Co., 22 Wend. 380 ; Yeaton v. Fry, 5 Cranch. 335-341.) If there are exceptions in a policy they are to be construed strictly against the insurer. (1 Duer on Ins. 56, lec. 2, part 1.) The intent of the plaintiff in this case was to insure against the destruction of his property by the perils of the seas—it could never have been intended that a total destruction of the article, caused by the seas, should have been excepted. The word “ leakage,” if applied in the sense which the defendants contend, would exempt them from liability for loss had the waves, by their dashing in the ship in the storm, broken all the cans of turpentine to pieces at one “ fell swoop,” and the turpentine had instantaneously flowed out on the deck or ran overboard. The word “ leakage” means to let out, as well in large as small quantities, and the exemption contended for would free the defendants from all liability, notwithstanding the ship itself was totally lost, if it could be ascertained that in the shipwreck the cans were broken and the turpentine flowed out.
    IH. The word “leakage,” in the policy, applies only to a loss caused by accident other than the perils of the seas, such as was incidental to the nature of the article and its manner of transportation. The word “ leakage,” as applied to commerce, means “ an allowance in the customs granted to importers of wine for the.waste and damage the goods are supposed to receive by keeping.” (Brande, Dic. of Arts and Science.) The meaning of particular words in policies of insurance is to be made applicable to the subject, nature, or business insured, so as to effectuate the object intended. Thus death by suicide, excepted in a life policy, does not cover suicide committed by an insane man; in such case the insurer is liable. (2 Phil. on Ins., § 1794; Breasted v. Farmers' Loan and Trust Co., 4 Hill R. 73.) A condition in a policy, not permitting the storing of liquors, does not comprehend the keeping of liquors to retail to boarders and others. (Rafferty v. New Brunswick Fire Ins. Co., 3 Harr. 480.) Nor does the keeping a bar-room, to sell liquors, constitute a tavern-keeper, within the meaning of a provision against that occupation. (Ib.) Plate and paintings, though excluded by the conditions of a policy, except specially insured, still applies to and covers silver spoons in use, and family portraits, without a specification. The term stock in trade, when used in a policy, in reference to the business of a mechanic, includes not only the materials used by the mechanic, but the tools, fixtures, and implements necessary for carrying on his business. (Moadinger v. Mech. Fire Ins. Co., 2 Hall, 490.) Linen, in a policy, preceded by the words household furniture, means household linen. (3 Camp. 422.) And ships’ furniture includes provisions in the ship. (4 T. R. 206.) And where there was a representation that no spirits would be allowed on board a ship, and it turned out there were two kegs of spirits on board, but not for use, the policy was not invalidated. (Irwin, survivor, &c., v. Sun, Ins. Co., and to the same point, 22 Wend. R. 380; 4 Camp. 76, 77 ; 2 Caines, 288; Langdon v. N. Y. Equitable Ins. Co., 1 Hall R. 166.) And in the case of Crofts v. Marshall (7 C. & P. 597, referred to in Arnold on Ins., p. 759, § 282) it was held that the underwriter was liable for extraordinary “ leakage” or breakage, caused by the violent pitching and laboring of the ship, though the stowage had not been disturbed.
    IV". If there can be any doubt as to the meaning of the word “ leakage,” in the policy, in the case, the court will not decide against the construction of the plaintiff, but send the question to a jury to see whether there has been, or is, any usage as to themanner in which this word has been "construed. "Where the' known usage of trade in use and practice, as between assurers and assured, has given an appropriate sense to terms used in a policy, they are to be construed according'to that sense. Thus proof has been allowed to show that boys meant seamen. (Bean v. Shepard, Doug. 12.) That a certificate of proof of ownership of a vessel is a sea-letter, although in fact not a sea-letter. (2 John. R. 531.) That sarsaparilla, although a root, is not a root within the meaning of a policy. (7 John. 385.) That bearskins with fur on :are not skins, as enumerated in memorandum articles. (7 Cow. 202; and to the same point, Parke on Ins. 112; 5 Bos. & Pul. 213; 2 Esp. p. 633; 1 Phil. Ins. 466; 4 Phil. Evid., Cow. & Hill’s notes, 495, note 263 to p. 293.)
    Y. The plaintiff contends there is -no ambiguity in the term “ leakage,” as mentioned in the policy; that his loss occurring by the perils insured against, the defendants are liable to pay the amount claimed.

      D. Lord, for the defendants.
    The policy was on cargo from Philadelphia to San Francisco against the usual sea perils. The policy contained the following warranties, excepting certain risks or losses, out of the liability of the insurers, namely:—1. Against loss by seizure for trade, illicit or contraband. 2. Against loss on bar iron, &c., &c., from average, unless general. 3. Against loss on hemp and other articles under a certain per centage, unless general. 4. Against damage from dampness, &c., except by actual contact of sea water. 5. Against leakage on molasses or other liquids, unless occasioned by stranding or collision. 6. In addition to these exceptions was a special clause, endorsed, expressing the insurance to be “on spirits turpentine in cans, packed in boxes, on deck, free from loss by wet, breakage, leakage, or exposure.” On these clauses, five and six, the question in this case arises.
    I. As the insurers would not be liable for any losses, unless occasioned by the perils enumerated in the policy, they would, not, even without the exception, be liable for breakage Or leakage unless occasioned directly by- sea perils: There was, therefore, no scope nor object in the-exception, except to comprise-breakage and. leakage, for-which, without the- exception, they would have, been liable, i. e. breakage or leakage from sea perils.,
    II. The policy-in all theother warranties-or exceptions above-enumerated, by force of the exceptions, relieves the underwriters, in the excepted cases, from the effect of the perils generally insured, applied to the excepted cases.
    ITT. The reason of the exception, in the case of the articles in the memorandum, applies to the article now in question. The slightest sea damage to the cans, creating the smallest leak,-would, by inattention or undiscoverable neglect, waste the whole; and .it would be impossible to discriminate between the loss directly resulting from the sea peril, and that from the character of the article and its packages, or from .inattention to the progress of the leak.
    IV". The whole loss in- the case having arisen from leakage, was assumed by the insured, and excepted from the liability of the insurer, except only the five cans carried overboard, $131.57, for which the defendants offered to give judgment: for this alone, judgment must be rendered, with costs to the defendant.
   By the Court. Duer, J.

There is no sounder- maxim in the interpretation-of-a contract in writing than that effect must be given, if possible, to every clause, and no words be rejected, as unmeaning or superfluous, to which a- consistent meaning may be attached—verba aliqwid operand debent. And the rule is especially applicable when amew clause is introduced into a contract, which, as in the case of a policy of insurance, has an established form and settled construction. The presumption is, then, not to be resisted that the clause was designed to vary the usual construction, and to effect a particular object, which could not otherwise be attained. It is true the clause may be so framed as to express no more than, in its absence, the law would imply, but we apprehend that this narrow construction can only be adopted when the words are not susceptible of a different and wider application.

In the case before us the words in the contract endorsed upon the policy, “ free from loss,” &c., “ by leakage,” &c., it construed as referring only to losses from a leakage, not caused by a peril insured against, are wholly useless. If construed in this limited sense, they might as well be expunged from the policy, since it is quite certain, and is not denied, that for losses resulting from ordinary leakage, the underwriters, under the policy in its usual form, are not, and never have been held to be, liable. The clause has, therefore, no operation at all, unless understood in a sense as broad as its terms import, namely, as freeing the underwriters from all liability for losses of which leakage is the proximate cause, whatever may be the cause by which the leakage is itself occasioned, and, consequently, although occasioned by a peril insured against. It is wholly inoperative, unless the words create an exception from the general terms of the insurance, and exempt the underwriters from losses for which they would otherwise be liable.’ Hence it is this construction that we hold ourselves bound to adopt, nor do I at all doubt that it corresponds entirely with the real intention of the parties.

The clause in the memorandum part of the policy, declaring that the Company is “ not liable for leakage on molasses or other liquids, unless occasioned by stranding or collision,” is probably superseded by the more general words in the contract endorsed upon the policy. Yet, as throwing a clear light upon the true interpretation of those general words, it may with great propriety be referred to. Stranding and collision are certainly perils insured against. And the exception of these particular perils was manifestly needless, unless the declaration that the Company was not to be liable for leakage, it was understood would embrace them; in other words, unless by leakage was meant a leakage occasioned by any and every peril insured against. The words, “ not liable for leakage,” and “ free from loss by leakage,” have exactly the same meaning.

The reasons that have induced the insurance companies of late years to exclude entirely the risk of leakage, are doubtless those which were clearly stated by the counsel for. the defendants. There is a practical difficulty in determining, in many cases, whether a leakage, from which a loss is claimed, was merely ordinary, or was caused, in whole or in part, by a peril insured against; and when the controversy is whether the loss shall be borne by an individual or a corporation, juries are not much inclined to make the necessary distinction. The experience of the underwriters has probably convinced them, that, to secure the protection which the law gives them against losses from ordinary leakage, the risk must be wholly excluded.

The cases and authorities to which we were referred, on the argument, by the counsel of the plaintiff, have no application to the case before us; they only prove that when there is no special clause in the policy excluding the risk, and leakage is shown to have been caused by a peril insured against, the underwriters are liable for a resulting loss. If such were not the law a special clause to exclude the risk would not be necessary, and it is because such is the law that the clause has been introduced.

When a controversy is submitted under the Code, the court, at general term, can only determine the questions of law arising upon the facts agreed upon by the parties, and the only question of law arising upon the statement of facts in this case, in our opinion, is the question of- construction, which we have considered and decided. The fact that the whole loss now sought to be recovered, with the exception of the five boxes carried overboard, was a loss from leakage in the proper and usual sense of the term, although the leakage was itself occasioned by a peril insured against, we understand to be distinctly admitted. Indeed, unless this admission was intended to be made, the controversy ought not to have been submitted at all, and, unless it is made, there is no question of law that we can be required to determine.

At any rate, we must give our judgment upon the statement as we construe it, since we have no power to vacate the submission, or refer the facts to the determination of a jury. (Laing v. Ropke, 1 Duer, 702, 3.)

Our decision is, that the plaintiff is entitled to judgment only for the sum of $131.57, the admitted value of the five boxes carried overboard, and that the defendants, having offered to allow judgment for that sum, are entitled to their costs.


text:
    Daniel D. Howard v. Henry Doolittle and William H. Burroughs.
    A landlord is, in no case, bound to repair unless by force-- of an express covenant • or contract.
    Even .when a building is let for a special purpose, and its use or occupation for any other is, in terms, prohibited, there is no implied contract or warranty, on the part of the landlord, that the building - shall be or continue - fit for the purpose for which it is demised. -
    Nor, if the building eeases to be habitable, or is wholly destroyed, is the tenant discharged from the payment of the whole or of any part of the rent. He can only be so exonerated by an express agreement.
    A covenant for quiet enjoyment, in a lease; means only that the tenant shall- not-be evicted by a paramount1 title. It relates- only to the title; and not to the actual occupation, when there is no eviction of the premises demised, ■
    The decision of the Court of Exchequer in Smith v. Marráble, 11 M.& W. 5, is anomalous, and is, in effect, overruled by the subsequent- decisions of the same court in Sutton -v. Temple,Vi M. <$c'W.- 62; and in Hart v. Windsor,T2-M. <fc'-W. 68,
    The defendants, tenants of a-hotel under alease from the plaintiff, agreed to repay to him the moneys expended by him in making certain repairs, if it should be settled that, as landlord, he was not liable to make the repairs.1

      Held, that, as the lease contained no express covenant or stipulation binding the plaintiff to repair, and no provision that-could be reasonably interpreted as creabing.such an obligation, he was entitled to recover the moneys he had expended.
    (Before Oaklet, C. J., Dueb and Campbell, J.J.)
    June 20; 24, 1854.
    Submission of a-controversy under § 372 of the-Code;
    The following is the statement of facts agreed' on by the parties.
    “On the 27th day of'September, 1852, Daniel D.- Howard leased to Doolittle & Burroughs the premises known as the Irving House, in the city of Hew York, on Broadway, Cham-hers, and Reade streets, for the term ending on the first day of May, 1855.
    “ A copy of the lease is annexed.
    “ On the first day of May, 1853, Bininger, the owner of the premises and buildings adjoining the western portion of the Irving House buildings, commenced to remove and did remove his buildings from his said adjoining lot, and rebuilt on the same.
    “ The removal and rebuilding would necessarily expose the side-walls of the western part of the Irving House to imminent danger of falling down, unless shored up and protected. It became necessary, in the progress of the work' on Bininger’s lot, thus to shore up and protect said walls, in order to prevent their falling down, which would render important parts of the Irving House untenantable.
    . “ One portion of the Irving House adjoining the Bininger premises was leased to Howard by William Onderdonk, and the other portion was leased to him by William Lee, the owners of the respective portions. These leases are referred to in the before-mentioned lease of said Howard to Doolittle & Burroughs, and are hereto annexed. Those persons were duly notified of the intentions and proceedings of Bininger, but refused to do anything towards the protection of the property.
    “ It was claimed by Doolittle & Burroughs, as between them and Howard, that he (Howard) was bound, as their lessor, to protect them, in the enjoyment of the demised premises, from any disturbance by the lawful acts of Bininger; "and that he (Howard) was bound to shore up and protect the walls of said demised premises from falling.
    “ Howard claimed that he was under no. such obligation; that Doolittle & Burroughs took the lease from him subject to all his covenants, and all the conditions and obligations on him contained in the lease of Onderdonk and Lee, and that if Doolittle & Burroughs had any claim, it was not on him, but upon Onderdonk and Lee.
    “ The urgency of the case required immediate action; and, in Order to avoid injury from delay and a .litigation, an agreement was made between Howard and Doolittle & Burroughs, of which a copy is annexed.
    ‘ “ In pursuance of this agreement, Howard proceeded to do all the work required, and in so doing expended twenty-five hundred and sixteen dollars, of which the sum of seventeen btindred and eight dollars and five cents was expended in protecting the Onderdonk, and eight hundred and seven dollars and ninety-five cents in protecting the Lee premises.

      “ The question is now submitted to the court, whether Howard was bound by his obligations, as lessor of Doolittle & Burroughs, to shore up or protect the premises, or either portion.
    “ If he was not liable for any part, the court will render judgment in his favor for the amount expended on the whole, and interest; or if liable on either portions of said premises, the court will render judgment in his favor for the amount, with interest, expended bn the part on which he is not liable, with costs, in either case. If Howard was liable on either- or both portions of said premises, the court will render judgment accordingly in favor of Doolittle & Burroughs, with costs. The costs to which either party shall be entitled are hereby fixed at fifty dollars.
    “ It is not deemed necessary to set forth the leases annexed to this statement. All the provisions that were deemed material or relevant, it will be. seen, were referred to by the counsel of the parties upon the argument.”
    The agreement, referred to in the statement, is in these words:
    “ Whereas, Mr. Bininger is removing the buildings, and about erecting new ones, on 83 Chambers street, and on Eeade street, opposite and adjoining premises rented by Daniel D. Howard of William Onderdonk on Chambers street, and of William Lee on Eeade street, and which are rented by said Howard to Doolittle & Burroughs, and it will be necessary that the buildings so rented by said Howard to them should be shored up and protected against injury resulting from such removal and rebuilding, and the said Onderdonk and Lee have refused to do anything toward that object, and the said Doolittle & Burroughs claim that said Howard is bound to db the shoring up and protecting, as their landlord, and said Howard claims that he is not liable to do so; and whereas, it- is necessary that the work be done without delay: How it is agreed, between the parties hereto, that the question of the liability of said Howard shall be settled hereafter, and the said Howard shall go on and do, or cause the necessary work to be done, and if the said Howard is not liable, the said Doolittle & Burroughs shall pay him the expense incurred by him therefor, with interest on moneys paid out, and such shoring up and protecting by him shall not prejudice his right in the matter.

      “ Hew York, May 7,1853.
    ■ “ (Signed) D. D. Howard,
    “ Per J. P. Howard, Att’y.
    “ (Signed) Doolittle & Burroughs.”

      J. E. Burrill, in moving for judgment for the plaintiff, Howard, argued as follows.
    The question to be determined is whether the plaintiff was bound, by his obligations as lessor of the defendants, to shore up the demised premises. If he was not, he is entitled to recover.
    It is not material to determine upon whom such liability rests, so long as it does not rest upon the plaintiff.
    Bininger had an undoubted right to make the excavation upon his own premises, and it was the duty of the owners of the adjoining premises, to shore them up. (Lasala v. Holbrook, 4 Paige, 169; Radcliff v. The Mayor, 4 Coms. 197 ; 4 Kent’s Com. 7th ed. 532; Panton v. Holland, 17 Johns. R. 92.)
    I. There is no express covenant in the lease from Howard to the defendants, which imposes upon Howard the duty of repairing, keeping in repair, upholding or sustaining the demised premises.
    H. If any obligation of that kind was imposed on Howard by the covenants in the leases of Onderdonk and Lee to him, or arose from his character as lessee in' those leases, that obligation has been assumed by the defendants, by the express covenants in the leases to them.
    IH. In the absence of any express agreement on the part of the landlord to repair the premises, and keep them in repair, there is'no obligation on his part to do either. (Comyn on Landlords & Tenants, 185; 1 Cruise Digest, Title 8, ch. 2, p. 249; Moffat v. Smith, 4 Coms. 126; Mumford v. Brown, 6 Cow. 476; Cleves v. Willoughby, 7 Hill, 90; Platt on Covenants, 267.) Ho matter by what cause the premises are damaged or destroyed, if it be not by the act of the landlord, the landlord is not obliged to repair or rebuild, but may, notwithstanding, recover the rent. (4 Kent’s Com. 7th ed. 575; Arden v. Pullen, 10 Mees. & W. 324; Hart v. Windsor, 12 ib. 68; Hill v. Woodman, 2 Shep. 42.) Although there be covenants in the lease, requiring the lessee to do repairs of a limited character, which are not sufficiently comprehensive to create a liability on the part of the lessee to do repairs generally, still no agreement on the part of the lessor is raised or implied. (Platt on Covenants, 267-275-283; Comyn, 185; Pomfret v. Ricord, 1 Saund. R. 321; Arden v. Pullen, 10 Mees, & W. 324; Holtzapffel v. Baker, 18 Vesey, 115, S. C. 4 Taunt. 45; Belfour v. Weston, 1 Term R. 310.)
    IY. Although there be no express covenant on the part of the lessee to repair and keep the premises in repair, still he is bound to do so. 1. At common law, before the statute of 6 Anne, the lessee was bound to rebuild in case of accidental destruction of the premises by fire. (Cruise Digest, supra; Comyn,. p. 201.) 2. That statute altered the liability of the lessee only in reference to rebuilding in case of destruction by fire, and his liability in other respects was unchanged. (Comyn, 188 ; Co. Litt. 53 (a); Cruise Digest, ubi suprai) 3. A tenant is obliged, without any express covenant on his part, to make all such repairs as may be necessary to preserve them in tenantable repair, having regard to the character and condition of the house at the time of the demise. (Comyn, 189, 200 ; Platt on Covenants, 266. See cases under 2d subdivision of 5th Point.) 4. But although the tenant be not obliged to make the repairs, still it does not follow that the landlord is ; for the tenant may suffer the premises to be unrepaired. (Platt on Covenants, 275 to 283, and cases cited.)
    Y. The defendants covenanted to keep the premises in reasonable order and repair, and also to surrender the premises in as good state and condition as when demised, reasonable use and wear thereof, and damages by the elements excepted. 1. These covenants certainly do not restrict the common law liability of the lessee. 2. Under these covenants, the defendants are obliged to do everything necessary to keep the premises in the condition in which they were when demised; and had they suffered the building to fall for want of proper shoring up, they would be liable on their covenant. (Jaques v. Gould, 4 Cush. 384; Platt on Covenants, 274, 284; Shepherd’s Touchstone, 169,173; Payne v. Wayne, 16 Mees. & W. 542; 4 Kent’s Com. 577.)

      T. H. Rodman, for the defendants, insisted on the following points and authorities.
    I. The premises were leased to the defendants for a hotel, and for no other purpose. By the same contract they purchased the furniture and fixtures, at a great price, for the exclusive use of the hotel, and stipulated not to remove the furniture during the term. A part of those fixtures were in the Lee & Onderdonk premises, and those, by his contract with Doolittle & Burroughs, Howard is entitled to remove at the expiration of the leases of those parts of the premises. Under that agreement Howard was bound to see that Doolittle & Burroughs had the beneficial use and enjoyment of the buildings, furniture, and fixtures, for the purpose of keeping the hotel. The shoring was not only necessary to keep them fit for habitation, but was requisite to preserve them from ruin. Had the walls fallen, the object and consideration of the agreement would, to a great extent, have failed. The case is not one of a demise of land merely, and therefore the construction of the agreement, and the rights of the parties to it, do not depend upon the rigid rules of the common law concerning landlord and tenant. But it is a case of a mixed contract for the lease of the hotel, with a letting of the boilers, tanks, pipes, and fixtures of every kind contained in the Lee & Onderdonk premises, so called, together with a sale of all the furniture in the hotel, with liens on the latter for the protection of Howard. The case comes within the principle established by Smith v. Marrable (11 Mees. & Wels. 5), and confirmed by the same court in Sutton v. Temple (12 Ib. 61). The court in the latter case were careful not to overrule the first decision, although they abandoned the idea there expressed, that the law implies a condition or contract on the demise of land, that it shall be reasonably fit for the purpose for which it is taken. (See opinions of Lord Abinger, C. J., pp. 60, 61; and Parke Baron, p. 63; Gurney, B. 64; Rolfe, B. 65.) In Hart v. Windsor (12 Mees. & Wels. 86) the decision in Smith v. Marrable was again called in question and again sustained. The decision in Smith v. Marrable is approved in Cleves v. Willoughby (7 Hill, 83, 88 ; 3 Kent’s Com. 574, 7 ed.).
    H. The operation of the inflexible common law rule in the case of a devise of land, without a covenant on the part of the landlord to repair or rebuild, which requires payment of rent, although the house may be burned down or otherwise destroyed during the term, without the default of the tenant, is repugnant to our sense of justice and equity, and has brought the Court of Chancery in England in conflict with the courts of law. (Crabb on Real Prop. §§ 203, 206; Brown v. Quilter, Ambler, 619.) The Roman law, more just and humane, protects the tenant from the payment of rent until the building is restored. The French law and law of Louisiana also exempt him in the same way. (4 Kent’s Com. 113, 7th ed.) Such a rule as that of the common law should not be extended, but should be strictly confined to its ancient limits, to wit, to the case of a mere demise of land. On that principle the case of Smith v. Marrable can be sustained without violating the rule, and the present case comes fairly within the spirit of that decision. The last clause of the agreement shows that this contract must be treated as a mixed contract; for the covenant of quiet enjoyment is made in consideration “ of the payment of rent,” the delivery of the bond, the payment of all the moneys mentioned, and the performance of all the covenants by Doolittle & Burroughs. The manifest intention of the agreement of the 27th September, 1852, was to transfer the Irving House, with all its furniture, fixtures, and the benefit of its business of entertaining guests, to Doolittle & Burroughs. The good will or business of the hotel was the great inducement, for every other business was expressly prohibited. That business could not be carried on in a house without walls, or in a tenement uninhabitable by- reason of the dangerous condition of the walls. Moreover, the whole of the fixtures in the Lee & Onderdonk premises belong to Howard, and his right to remove them at the end of the term was expressly reserved to him in the agreement by Doolittle & Burroughs: and their use in the house during the term, doubtless constituted an important consideration for their covenants. Yet, had the building fallen, or become a ruin, the fixtures would have been destroyed. Howard would have lost them, and Doolittle & Burroughs would have been deprived of their use. It is plain that the continuance of the business, the great object of the agreement, entirely depended upon the building being kept in a habitable state. When it ceased to be so, as it would of course by the falling of the walls, the enjoyment of the business, and the use of the fixtures would cease, and the object of the agreement would entirely fail. The payment of rent and taxes, and the performance of all the covenants on the part of the purchasers thereafter would be wholly, or in part, without consideration.
    IH. Under the peculiar circumstances of this case, the covenant by Howard for the possession and enjoyment of the premises during the term, we submit is more comprehensive than the ordinary covenant of quiet enjoyment in a lease. That, as a general rule, we concede, relates only to the title and not to the condition of the premises. But this is more comprehensive, and justice would seem to require that it should be extended to the actual beneficial use and enjoyment, as well of the personal property and rights transferred, as of the real estate devised.
    IV. If it be said that Doolittle & Burroughs were bound to shore up the wall of the Onderdonk premises, by reason of their covenant “ to keep them, in reasonable order and repair,” we answer that that covenant only embraces ordinary repairs. That construction of a covenant to repair, it is believed, has been uniform. (Taylor’s Land. and Ten., § 358.) Shoring up a wall to prevent its falling, or rebuilding it after it has fallen, is not repairing. Bebuilding, clearly, is not repairing. Shoring, though not explained in the case, is well known to be a method of sustaining and upholding a wall, bracing it with timbers, not repairing it. That is done where a wall has been damaged by violence or natural decay. The falling of the building, or of its walls, is certainly not such a cause of repair as either party could be supposed to have contemplated, when the contract was made. A covenant, to-repair binds the tenant .only to suffer no further dilapidation than results from natural causes. (Harris v. Jones, 1 Moo. & Ry. 173 ; Young v. Martin, 2 Scott,

      277; Stanley v. Twogood, 3 Bing. H". 0. 4; 1 Hilliard on Real Prop. 227.)
    V. It is no answer to the argument against the hardship of the rule, that the tenant who covenants to pay rent, must pay it, whether the house is habitable or not—to say that the tenant may protect himself by covenants in the lease. That is not the protection of the law, but self-protection. Besides, the law is made not for the wise and learned alone, but as well for the innocent and unlearned.- There is no- more reason why the promise of a tenant to pay rent should be enforced when the consideration for that promise has failed, than that his promise based on a sale or the use of personal property should be enforced when he has ceased to possess or use that. The tenant covenants to pay a certain rent, at stated times, for the use of the landlord’s premises. His is a continuing contract. If he ceases to occupy the- premises without his own fault, .why should he pay for them ? - If he does, does he not pay for what he does not receive ? To say he must pay because he has undertaken to pay, is no answer. If it is, he may as well say that the landlord has covenanted that he shall have the quiet possession and use of the premises, and he has not had it. Or he may say, as the bailee of personal property says with effect, that the property of the other has been destroyed by accident, or the act of a third party beyond his control, and he has lost the use of it. If freight is paid in advance, and the ship founder on her outward voyage, the money can be recovered. If charter money for an outward and homeward voyage be paid in advance, and the ship be lost on her homeward voyage, the charter money may be apportioned. Instances may be- multiplied to show the inconsistency of the rule we contend against with other settled rules of law. The policy of the law of England, which gave birth- to this iron rule, does not exist here. It grew out of the feudal system, which secured everything to the owner of the soil, and imposed the hardest terms upon the tenant. Our courts have constantly struggled,.and our legislatures have legislated, against this unjust and unequal principle of that system. The former lean against its forfeitures; the latter have abolished distress for rent and long leases of agricultural lands. In all these ways the public condenanation of those principles has manifested and is manifesting itself.
    VI. If Howard was bound to protect the premises from destruction, or submit to an apportionment of the rent equivalent to the expense, as we say he was—neither in law nor equity is he entitled to recover back the money spent in shoring up the wall. Probably his fixtures, in the building in jeopardy saved by this measure, were worth the cost of the work.
    VH. Had the walls fallen, the premises would have become a private nuisance to Bininger, which he might have abated, and a public nuisance, for which an indictment would have lain.
   By the Court. Duer, J.

The only question that the agreement of the parties requires us to decide, is, whether Howard, as landlord, was bound to make the repairs in question ? If he was not, the defendants have expressly promised to repay to him the moneys, which it is admitted that he expended in making the repairs, and the validity of their promise, as founded on a sufficient consideration, is not questioned.

It may be that the rules of the common law which govern the relation of landlord and tenant, are unsuited to the present condition of society, and, judged by modern notions, are unequal and oppressive; but a court of justice has no power to abolish them by the substitution of others that it may deem to be more reasonable and just, and it is not our intention in this, or in any case, to encroach upon the province of the legislature. When the law is doubtful, reasons of expediency and of equity have great weight, but we have no right to listen to them when the law is clear; since we have no more the power to alter rules plainly settled by prior adjudications, than to repeal the express provisions of a statute. We must declare the law as we find it to be established.

There is probably no rule of the common law more completely settled by a long series of adjudications, than that to create an obligation on thé part of a landlord to repair, in whole or in part, the premises demised, a positive stipulation, an express covenant or promise, is necessary to be proved. It is not a duty which the law considers as flowing from the relation of the parties, or which can be implied from the nature of their contract. Even when a house or other building is let for a special purpose, and its use or occupation for any other is in terms prohibited, there is no implied contract or warranty on the part of the landlord, that the tenement shall be, or continue) fit for the purpose for which alone it is demised. The provision restricts the tenant, but imposes no obligation upon the landlord.

Hor is this all. Hot only is the landlord not bound to repair, in any case, unless by force of an express agreement, but the tenant, even when the tenement demised ceases to be habitable, or is wholly destroyed, is not discharged, in whole or in part, from the payment of the rent subsequently accruing. Unless by a provision in the lease, the rent, upon the happening of such a contingency, is suspended or reduced, the promise of the tenant to pay the whole stipulated rent during the whole term, is construed as unqualified and absolute, notwithstanding the apparent failure of the consideration upon which it was founded.

If these established rules are applicable to the present case, the right of the plaintiff to recover cannot be questioned, and that they are applicable we see no reason to doubt.'

It is not pretended that the lease to the defendants contains an express covenant on the part of the plaintiff to repair; nor, in our opinion, does it contain a single provision that can be legally or reasonably interpreted as creating, or intended to create, such' an obligation.

It is true, that the lease contains a covenant in the usual words, for the quiet possession and enjoyment by the defendants of the premises demised, nor can it be denied that the words may be so interpreted as to favor the argument for the defendants. But the just interpretation of these words we have no right to consider as an open question. A covenant for quiet enjoyment, whether express or implied, it has long been settled, means only that the tenant shall not be evicted by a paramount title. It relates only to the title, and not to the actual possession or undisturbed enjoyment, where there is no eviction, of; the premises demised (Shep. Touchstone, 165,169, 202). We can perceive no grounds for the supposition, that in this case the usual words of the covenant were meant to be understood by the parties in any other than their usual and established sense. If the parties had any other intention, it is not an intention that we can deduce from their language, and, therefore, not an intention to, which, as judges, we can give effect.

The contract of the parties undoubtedly contains many provisions that do not properly belong to a lease, and may, therefore, not improperly be termed a mixéd contract; but we do not understand how these additional provisions (those relating to the sale of the furniture, the restoration of the fixtures, &c.) can affect the construction of those which relate solely to the letting of the premises, so as to vary the relative obligations of the parties as landlord and tenants. It is, indeed, apparent that the parties expected that the premises demised would be fit for occupation as a hotel during the continuance of the lease; but in any case where a house is let for a special purpose, and is believed to be fit for that purpose at the commencement of the lease, there is a similar expectation, and if this expectation is to have, in any case, the force of a positive covenant, the same effect must be given to it in all. The rule of law would then be, that whenever a building is let for a special purpose, there is an implied covenant or agreement on the part of the landlord that it shall continue fit for that purpose during the whole term for which it is demised; but the rule, it has already-been stated, is directly opposite—and that this is so, is sufficiently proved by the authorities to which we were referred by the counsel for the plaintiff, several of which are full to the point, and are uncontradicted.

The only authority on which the learned counsel for the defendants seemed much to rely, is the case of Smith v. Marrable (11 Mees. & Wels. 5); but we think that the authority of the decision in that case may well be doubted, and that, if its authority be admitted, it has no application to the case before us. If the decision proceeded on the ground that there is an implied condition in every letting of a house, that it shall be fit for habitation, we do not hesitate to say that it is not law; and if it proceeded on the ground that the letting was of a furnished house, and included the furniture as well as the house, it may be that it creates a valid exception from the general rule, but this is an. exception not embracing the case before us, since here the furniture was not let with the hotel, but was sold absolutely-to the defendants.

It is said that the decision in Smith v. Marrable was sustained by the same court in Sutton v. Temple (12 M. & W. 52), and in Hart v. Windsor (Id. 68), but, as we understand these sub-' sequent cases, so far from sustaining, they absolutely overrule the prior decision.

In Hart v. Windsor, Parke, B., who delivered the opinion of the court, distinctly admits that the opinion which he gave in Smith v. Marrable was erroneous, and that the case “ could not be supported on the grounds on which he rested his judgment” (12 M. & W. 89) ; and in another part of his opinion he lays down the true rule in the following terms: “ There are many authorities which clearly show that- there is no implied contract that the property shall continue fit for the purpose for which it is demised, as the tenant can neither maintain an action, nor is he exonerated from the payment of rent, if the house demised is blown down or destroyed by fire (Marsh v. Cooper, 2 Stra. 763; Balfour v. Weston, 1 T. R. 310; and Ainsley v. Ritter, there cited), "or gained upon by the sea (Taverner’s case, Dyer, 56 [a]), or the occupation rendered impracticable by the King’s enemies (Paradine v. Jane, Alleyn, 26). In all these cases the estate of the lessee continues, and that is all the lessor implicitly warrants” (12 M. & W., pp. 85, 86).

We observe, in conclusion, that should we even admit.that Smith v. Marrable is a full authority for the position for which it has not unfrequently been cited, namely, that when a building let as a dwelling-house ceases to be fit for habitation, the tenant may abandon the possession, and thus discharge himself from the payment of rent, it would by no means follow that the landlord, in such a case, is bound to place the house in a habitable condition, and is liable to an action in the event of his neglect or. refusal; and it may be confidently affirmed, that not a single case is to be found in which it has been held that such a duty can attach upon the landlord, otherwise than by virtue of an express agreement.

. The plaintiff is, therefore, entitled to judgment for the whole sum, with interest, which it is admitted that he expended; and. placing our decision upon these grounds, it is unnecessary, and would be improper, to express any opinion upon the legal construction and effect of the covenant, by which the defendants .bound themselves “ to keep the premises in reasonable order and condition.” It may be that the defendants were not hound to make the repairs in question; it is certain that the plaintiff was not.'

Judgment for plaintiff, with costs.