Opinion
No. 27645.
January 28, 1929.
1. LANDLORD AND TENANT. Plea that maker of notes given for rent was denied possibility of making crop because of extraordinary floods presented no defense.
Plea, in action on notes, to effect that notes were given in payment of rent on land, and that maker was denied the possibility of making a crop by reason of extraordinary and unprecedented flood of waters, without allegation that the land so rented was destroyed, presented no defense.
2. CONTRACTS. Act of God will excuse nonperformance of duty created by law, but not of duty created by contract.
An act of God will excuse nonperformance of a duty created by law, but will not excuse duty created by contract, and, in case a party desires release from performance of contract because of an act of God, he must contract specially against that contingency.
APPEAL from circuit court of Sharkey county, HON.E.L. BRIEN, Judge.
T.J. Lawrence and Henry, Canizaro Henry, for appellant.
Our contention is that here is a failure or want of consideration which brings this case within the line of authorities where exceptions have been made by the courts in certain cases.
If a condition arises which would not have reasonably been anticipated, or reasonably have been foreseen, and which makes it impossible for one of the contracting parties to do and perform his part of the contract, then it is our opinion that that party would be exculpated and would be held harmless for his failure. Piaggio v. Somerville, 80 So. 342.
The court in that case lays down three classes of exceptions: "First: A subsequent change in the law whereby promises become unlawful" (citing cases).
"Second: The destruction, from no default of either party of the specific thing, the continued existence of which is essential to performance" (citing cases).
"Third: Performance is excused by death or incapacitating illness of the promisor in contract which has for its object the rendering by him of personal services."
In the case at bar, there can be no question as to the destruction of the specific thing, which is the land which was leased for crop purposes, as is shown by the exhibits to plaintiff-appellee declaration and as is expressed in the pleas of the defendant-appellant making it a question for the jury to decide, first, whether or not it was possible for appellant to have raised a crop on that land for that year; and, second, whether or not some portion of the property could have been utilized for that year, which would have made the appellant liable for a proportion of the rent. Taylor v. Hart, 73 Miss. 33. See Gulf Ship Island R. Co. v. Hern, 100 So. 380; 36 C.J. 327; 13 C.J., sec. 718.
W.H. Clements, for appellees.
The appellee relies on the following points and authorities to sustain his position in this case:
1. So far as the record in this case shows the notes were the contract between the parties and contained the only conditions and exceptions.
2. A landlord does not guarantee that a tenant may make a crop on his property and if there are any conditions that will excuse the payment of the rent agreed upon, it must be set out in the contract. Piaggio v. Somerville, 119 Miss. 17; Paradine v. Jane, Aleyn, 26, 82 English Reprint, 987; Jemison v. McDaniel, 25 Miss. 83; Harmon v. Fleming, 25 Miss. 135; Abby v. Billups, 35 Miss. 618, 72 Am. Dec. 143; Mitchell v. Hancock County, 91 Miss. 414; Anson on Contracts (2 Am. Ed.), 424; Harmon on Contracts, 824; 3 Elliott on Contracts, sec. 1891; 13 C.J. 639; 6 R.C.L. 997; Note L.R.A. 1916-F. 10; Berge v. Ericson, 234 Fed. Rep. 817, 1917, A.L.R. 330 A. 649; Phelps v. School District, 302 Ill. 192, 193, 134 N.E. 312; 21 L.R.A. 737.
Appellant's idea that the crop interfered with was the thing rented is error. The contract or note calls for rent on land and not crops. See, also, Wilson v. Boise City, 20 Idaho 133, 117 P. 115; Prince v. St. Louis Cotton Compress Co., 112 Mo. 49, 86 S.W. 873.
This court has held that high water or overflow does not annul a contract nor relieve from the payment of rent, unless provided against in the contract. Jemison v. McDaniel et al., 25 Miss. 83.
The demurrer to the special pleas were proper and the court was right in sustaining them. Mitchell v. Hancock County, 91 Miss. 414.
Argued orally by T.J. Lawrence, for appellant.
B.T. and A.E. Orendorf, appellees here, filed a declaration in the circuit court against C.I. Bunting, appellant here, on two promissory notes, one for one thousand dollars and the other for two hundred and fifty dollars.
To this declaration the defendant, appellant here, entered a plea and notice as if under the general issue. Upon motion of plaintiff, the plea and notice were stricken from the file.
Thereupon the appellant filed a special plea to the effect that the promissory notes were executed by him as payments of rent on certain lands belonging to the Orendorfs, to be used for agricultural purposes, for the crop year of 1927; "that by reason of the overflow and the inundation of said lands by flood waters during said year aforesaid said lands were wholly uncultivatable and no crops of any manner whatsoever were grown thereon; that the failure of planting and growing of agricultural crops on said land aforesaid during the year of 1927, A. D., was in nowise due to negligence or fault of said defendant, but as the result of an act of God, and was wholly an act of which said defendant had no control, and this he is now ready to verify."
Successively there were interposed four special pleas, to each of which, as they were filed, the court sustained a demurrer, on the ground that the plea presented no defense.
The last plea interposed is, in substance, as follows: That the defendant signed the two notes sued on to secure the payment of the rent for a certain number of acres of land which was leased for agricultural purposes for and during the crop year of 1927, and, at the time of the execution of the contract, both plaintiffs and defendant had in contemplation the continued existence of the land fit for cultivation of cotton, corn, etc.; but that, owing to the fact that an extraordinary and unprecedent flood of waters inundated and overflowed said land, the subject-matter of the contract, without fault upon his part, thereby totally destroying its use for the purposes for which it was leased, in so far as agricultural purposes were concerned, the defendant, by the act of God, was thus denied the possibility of making a crop, as was contemplated by both plaintiffs and defendant, and is not liable therefor.
On the motion of appellees this plea was stricken from the files, as setting up no new matters other and different from those pleas to which demurrers had theretofore been sustained.
The appellant declining to plead further, judgment final was entered upon the notes, and appeal was prosecuted here.
In addition to the usual form of note, there appeared on the notes the entry, "For rent on one hundred and nine (fifty) acres of land secured by landlord's lien."
It is patent that the court correctly sustained the demurrers to the special pleas in this cause. There is no allegation that the land so rented was destroyed, and it is evidenced by the notes that the contract was for rent of land, and had nothing whatever to do with crops.
An act of God will excuse the nonperformance of a duty created by law, but will not excuse a duty created by contract, and, if a party desires relief from the performance of his contract, because of an act of God, he must contract specially against that contingency.
Counsel for the appellant cited the case of Piaggio v. Somerville, 119 Miss. 6, 80 So. 342, wherein there are cited the three exceptions which relieve from performance of contract:
First. "A subsequent change in the law, whereby performance becomes unlawful" (citing cases).
Second. "The destruction, from no default of either party, of the specific thing, the continued existence of which is essential to the performance" (citing cases).
Third. Performance is excused by "death or incapacitating illness of the promisor in a contract which has for its object the rendering by him of personal services."
He now contends, under the second exception, that the overflow of the land, which rendered the land incapable of use for crop purposes, is such destruction as is specified therein, and that he was entitled to a deduction in proportion to the loss sustained by him, because the overflow rendered the land incapable of cultivation.
He cites the case of Taylor v. Hart, 73 Miss. 22, 18 So. 546, 30 L.R.A. 716, in which the destruction of a gin by fire was permitted by this court to be considered as a factor in estimating the value of the lease, and the amount of the loss by fire was allowed to be deducted, pro tanto.
The difference in the case at bar and the Taylor case, supra, is obvious. The gin was destroyed — wiped out of existence by fire. We cannot extend the rule. This court has held that high water or overflow does not annul a contract, nor relieve from the payment of rent for the leased premises, unless the promisor in the contract provides specifically against such contingency in the contract. Jemison v. McDaniel, 25 Miss. 83.
The demurrers to the pleas successively interposed as filed were properly sustained by the court below, as none of the pleas constitute a defense to the enforcement of the contract.
Affirmed.