Opinion
Appeal from the District Court of the Fifteenth District, City and County of San Francisco.
COUNSEL:
Earl Bartlett, for Appellant.
J. H. Appelgate, for Respondent.
JUDGES: Wallace, J., delivered the opinion of the Court.
OPINION
WALLACE, Judge
On the 1st day of April, 1863, the respondent leased to the appellant a water lot in San Francisco, capped and piled, but not then otherwise improved. The indenture of lease, interchangeably executed, contains the usual clauses fixing the duration of the term (which was five years from its commencement), reserving a monthly rent (which the appellant expressly covenanted to pay at stated periods of time), and is otherwise in the customary form, except that it contains a special covenant in the following words: " And the said party of the first part doth hereby covenant and agree to and with the party of the second part, that he will well and truly erect or cause to be erected upon said premises, within two months from the date of this lease, a building according to certain plans and specifications this day agreed to and signed by said parties. And the said party of the second part doth hereby covenant and agree for himself, his executors, administrators and assigns, that he and they shall and will well and truly keep the said building, so to be erected as aforesaid, in good repair during said term hereby granted.
The appellant entered under the lease, and the respondent erected the building in accordance with the covenant. The stipulated rent was paid up to June, 1866, but the building having been about that time destroyed by fire, the appellant refused to pay any further rent, unless the respondent would rebuild, which the latter, upon his part, refused to do.
It is unnecessary to consider whether this refusal should have been pleaded by the appellant, in bar, or by way of counter claim; for, in either form, it could not have availed him.
There is no express covenant, on the part of the respondent, to rebuild; he was bound to build but once, and then only to build a structure of a specified character, and within a limited time. The erection of that building within the prescribed periods forever satisfied the covenant on his part. To ascertain that he did not expressly covenant to rebuild, is, virtually, to decide the case, for the law does not imply such a covenant, on his part, nor will his failure to rebuild, after the accidental destruction of the premises by fire, relieve the lessee from his express agreement to pay the rent.
The authorities which support this proposition are too numerous to permit here a citation of them all. Some of them are: Beach v. Farish (4 Cal. 339); Sheets v. Selden (7 Wallace, 423); White v. Molyneux (2 Kelley, 126); Linn v. Ross (10 O. R. 412); Izon v. Gorton (7 Scott, 546.)
The order denying a new trial was therefore correct, and it is affirmed.
It is conceded, however, that the judgment is for too much money--but the counsel here differ as to the amount of the excess, and we have no means of satisfactorily ascertaining it.
The judgment is therefore reversed, and the cause remanded, with directions to the Court below to render judgment, in favor of the respondent here, for such sum of money for rent, interest and costs, as may be proper--not including, of course, the costs of the appeal, which must be paid by the respondent.