The San Francisco call., 1906-09-02
MAY COLLECT FIRE
RENT REBATES.
Destruction of Property
No Excuse for Keep
ing Advance Rentals

Lessees of property on which rent
was paid in advance and which was de-
stroyed by the big fire of April Is are
entitled to a rebate on the amount pald
for use subsequent to the date Oh oe-
struction according to decision rem
dered yesterday morning by Judge Mu-
rasky in the case sof j. W. Treadweii
against julius Rosenstirn.
In the case in question the evidence
showed that Treadwell had rented a
building of Rosenstirn, paying $500
rent in advance for the month or April.
The building was destroyed by the nre
and Treadwell brought suit to recover
$40, representing the amount OF rent
for the portion of the month between
April Is and April 80. The demurrer OF
the defendant was overruled and Judg-
ment granted in the sum asked. the de-
fendant being given leave to answer
within ten days.
I The decision is of unusual interest
because of the tendency at the present
time of several cases of a similar ma
ture and because the opinion OF the
court is directly contrary to the hold
ings of Ohio courts in similar cases re-
garding the construction of the statute.
Judge Murasky. in his opinion, quotes
section 1885 of the code, which states
that when the hiring of thing is ter
minated by destruction of the thing
hired, the hirer must pay the due
proportion of the hire for such use as
he has actually made of the thing.
The Ohio decision in the case OF Felix
VS.. Griffiths is then cited, in which II
is argued that the statute abridSing
the lessee's liability in case of de-
structlon should be limited in its appli-
cation to the plain import of the words
used, and there being no provision that
rent already paid might be recovered,
exemption of the lessee should be re-
stricted to his exoneration from pay
ment after surrender.
This opinion" said Judge Murasky,
sis based solely on the assumption that
the statute should be strictly construed,
while in this State the code provisions
are to be literally construed with a
view to effect its objects and promote
Justice. To my view the Interpretation
of the Ohio court is much too narrow
and not as sound as the opinion OF the
Washington court expressed in Porter
VS.. Tull, in which it is said, We are
unable to discover any real foundation
in logic, law or Justice for this distfnc-
ton The consideration for which the
lessee pays a monthly rent in advance
is the use and possession of the build
ing for month and there is an implied
contract on the part OF the lessor to
furnish him the use of the building for
the time for which he pays for it. The
payment in advance is simply pruden-
tial requirement on the part of the les
sor to procure the rent and protect him
self against the chances of losing ii
and the inconvenience and trouble of
collecting it. Conceding that the les
see is not liable for the remainder of
the period for which the building is
leased. there must be something more
to warrant the presumption that the
parties intended to establish a differ
ent degree. of liability than the mere
fact that the money was paid in ad-
vance. What difference can there be in
principle, so far as fixing the liability is
concerned. whether the contract is to
pay the rent monthly in advance or
monthly at the end of the month";