The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1898-03-11

house forming of the premises be DESTROYED by fire; the
is obliged to rebuild Bullock DOmmt, L. r. $50
Hence is usual expressly except damage by fire other
unavoidable casualty But the that the expiration
of the the lessee shall deliver up surrender the premises
the the good condition the
of the lease ordinary and tear excepted
obligation rebuild in of destruction by fire other
avodabe casualty Warner Hitchins, Barb 666; Miller
a. Norris So Tex 412 In such the parties presumably
have in mind the of the property
the property the expiration the
The obligation against holding for the
of the property The parties that the property
nue When the basis of the obligation removed
the obligation itself falls The emphasis is the word
render the word premises" The purpose guard
holding damage through the fault of the
Similar reasoning has been applied in constituting
parties The similar the bar that of Young
Leary n Y $50. The charterer agreed that the
termination of the charter he would deliver the said
propeller the Washbum Steamboat Company (he owner)
in the good condition as she is in,
ordinary and excepted The court after referring
the class of which inevitable accidents held
afford for nonperfomance of absolute contract,
said
"The contract in this it seems us under
another class which relates the hiring for of thing
hired and where express contract made reever the
article hired upon the determination of the of hiring.
Even in such of express contract there is implied
dtion of the continued existence of the thing which the
subject of the contract and if it perish without any fault of the
hrer that redeivery becomes impossible the hrer is
cused"
When language like that found in this agreement used
the condition of continued existence implied, and thus
interpreted nothing of obligation than that
which the law raises without such promise When language
is used which does than express terms the
obligation which the law raises from the facts of the transaction
ITSELF the party using the language further bound than he
would have been without it,
The court also quoted from Leake Contracts follows
The authorities establish the principle that where from
the of the appears that the parties from
the beginning have known that could not be fulfilled unless
when the time for the fument of the arrived
particular specified thing continued to exist that when enter
nued existence the foundation of what to be DONE then
in the absence of express implied warranty that the thing
shall exist the be construed positive
tract but subject to implied condition that the parties
shall be excused in before breach the becomes
impossible from the persbng of the thing without the default
of the contractor"
See also Anes Belde, II Barb. 513 NcEres Seam-
boat Sangamon % Mo- 1S9: Hy1and Paul. 80 Barb al;
St6'cart Stone 127 n Y. 500; Stun Boxer, $50 l.
S. 312
In Steele T. Buck, ILL., 343 cited by the beant, it is
true the different conclusion but that suit
brought upon the charepry but upon separate bond
the performance of the covenants the charter
party The court based its decision this distinction 1t
said if the chaerpary a between the
parties there might be for insisting that creates
higher obligation than the law imposes and distinguished
Aes Bede SUPRA the ground that the action in that
upon the charterprty itself Whether this distinction
wefounded in principle need to say but
the distinction taken and the did dispute the
of decisions of the class which Aes Beden
belongs In Young Lea supra, the suit was in the
present against the surety and against the charteer
The presumption that in of this kind the parties
template that there should be continuing obligation only in
of the continued existence of the thing whose
to make performance possible may of be
bued by other appropriate words in the contract In the
the other language of the charterpary does not
tend in the least the presumption. If anything
it rather strengthens it.
The decree appealed from is affirmed with costs.
p Neumonn and A. G. II. Robertson for ibeant.
" r. Castle, p L. Wearer and G. A. Darts for bellee.