It applies also to subdivision 2 of section 1932 of the Civil Code. Whether the perishment required by section 1932 was the failure of the cesspool or the consequent termination of the trailer park operations pursuant to governmental order, Sewell cannot prevail, for he assumed the risk of both occurrences. [11] Both before ( Ainsworth v. Ritt, supra, 38 Cal. 89, 90) and after ( Egan v. Dodd (1917) 32 Cal.App. 706, 710-711 [ 164 P. 17], cf. Realty RebuildingCo. v. Rea, supra, 184 Cal. 565, 574-576) the enactment of section 1932, it was recognized that a party could not terminate a lease because of the destruction of the subject matter when he had assumed the risk of such destruction by his covenants to repair since to do so would be to evade one of the essential elements of the risk allocation intended by the parties' agreement.
Upon the question as to whether or not a general covenant to repair imposes an obligation to rebuild structures completely destroyed, the decisions in the different jurisdictions are not harmonious. Appellant relies upon the early case of Polack v. Pioche, 35 Cal. 416, [95 Am. Dec. 115], and the more recent case of Egan v. Dodd, 32 Cal.App. 706, [ 164 P. 17], in both of which cases the tenant's liability to make repairs under a general covenant to repair was asserted and affirmed. In the latter case it affirmatively appears that the dilapidations were not such as to require the rebuilding or replacement of the entire structure.
There it was held that a general covenant excepting only "damages by the elements and damages by acts of Providence" required the tenant to repair even a totally demolished residence where the "damage" was caused by failure of a man-made reservoir on upper lands, the tenant being in nowise responsible for the failure. This case, followed in Egan v. Dodd, 32 Cal.App. 706 [ 164 P. 17], has been overruled insofar as it requires a tenant to repair total demolition. ( Realty Rebuilding Co. v. Rea, 184 Cal. 565 [ 194 P. 1024]; Dicker v. West, 164 Cal.App.2d 55 [ 330 P.2d 106]; Friedman v. Isenbruck, 111 Cal.App.2d 326. 334 [ 244 P.2d 718].)
If the premises upon which these arguments are based were sound, the legal conclusion stated would undoubtedly follow. ( Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534]; Egan v. Dodd, 32 Cal.App. 706 [ 164 P. 17].) The difficulty with this argument is that the premises upon which it is based are unsound.
Without relating the evidence in full, suffice it to say, there was sufficient evidence, if believed by the trial court, to support the finding that certain conditions of the lease were, as a consequence thereof, breached by defendant. ( Egan v. Dodd, 32 Cal.App. 706 [ 164 P. 17]; Realty Rebuilding Co. v. Rea, 184 Cal. 565 [ 194 P. 1024]; Connell v. Brownstein-Louis Co., 86 Cal.App. 610 [ 261 P. 331]; Code Civ. Proc., ยง 1161, subd. 4.) That finding cannot be disturbed on appeal. ( Waer v. Waer, 189 Cal. 178 [ 207 P. 891].)
All of the items of repair here are within the tenant's duty under a general covenant to keep in repair without qualification, according to the earlier decisions. ( Polack v. Pioche, supra; Egan v. Dodd, 32 Cal.App. 706 [ 164 P. 17].) With respect to painting a distinction has sometimes been made between painting for decoration and painting for protection and preservation of the building.