By the -Cowrt,
Smith, J.
This was an action of covenant brought by the defendant in error, in the Milwaukee Circuit Court, as assignee of the lessees, against the plaintiffs in error as the assignees of-the lessor, upon covenants contained in a demise of certain premises known as the “ United States Hotel,” in the ■city of Milwaukee, afterwards destroyed by fire. Judgment in' the court below was rendered upon demurrer to the declaration ; and the main -question presented by the pleadings, and discussed in the argument at bar, is, whether the lessor or his assigns was bound t-o refund the whole or any part of the installment of rent paid in advance, according to the terms of the lease,in case the building should be in whole or in part, destroyed by fire. The lease was for ten years from and alter the 25th day of October, A. D. 1845, at the yearly rent of $1,317.50, payable quarterly in advance. The -lease also provided, that in case the building thereby demised and rented, or any portion thereof, should be destroyed (by fire) without the culpable neg^ ligence of the lessee or his assignees, the lessor or his assigns should cause the same to be repaired and restored with all reasonable dispatch (or that under certain circumstances the lessees might repair), “ and for such time as -the said- lessees (or their [482]*482assignees) should be deprived of the use of any portion of the buildings so destroyed by fire, a corresponding deduction should he made and allowed in the rent of the premises. By another supplemental agreement, the rent was increased to $1,525 per an-num, in consequence of certain enlargements made, but payable in the same manner. On the 24th day of August, 1854, the demised buildings were wholly and totally destroyed by fire, but no effort was made to rebuild them by either party. On the 25th day of July, 1854, the plaintiff below paid the quarterly installment of rent in advance for the quarter commencing on that day, according to the terms of the lease; and this suit appears to have been brought to recover back the proportion of the rent so, paid in advance, to the part of the quarter subsequent to the fire.
We do not propose to enter upon a very critical examination of the pleadings in this case. It is quite apparent that the question presented to the court below, and on which the judgment of that court upon the' demurrer was based, as well as the estimate of the damages then made, was founded, was whether or not, in case of a total destruction by fire, the lessees could recover back any installment of rent, or proportion thereof, paid in advance at the commencement of the quarter, according to the terms of the lease, and the destruction occurring before the expiration of such quarter.
It seems to us that the plaintiff below has mistaken the import of the covenant in the lease, upon the assumed' breach of which his cause of action is based. The language of the covenant referred to is; “ and for such time as the saidTafft and Spurr (the original lessees) shall be deprived of any portion of the buildings so destroyed by fire, a corresponding deduction shall be made and allowed, in the rent of the premises. There is no covenant to refund the rent already paid in case of a partial or total destruction by fire. The covenant simply is, that in case the lessee shall be deprived of any portion of the building destroyed by fire, a corresponding deduction should be made in the rent of the whole premises. When another quarter day should arrive, the lessee could claim his deduction, but the lessor did not agree to refund rent already due and paid. In case one or more rooms should be rendered useless by fire, the lessee could not claim a [483]*483deduction of any portion of the rent due, payable and paid on the preceding quarter day, but he could claim a corresponding deduction from the rent which would become due, and payable on the next quarter day. That this deduction was to be made from rent to accrue, and not from rent already accrued and paid, is obvious from the fact that there is no covenant to repay; from the fact that there is a covenant to repair and restore; and from the fact that in case of neglect of the lessor to repair and restore, an option is given to the lessees to repair and restore; and from the further fact that there must necessarily be an accounting of the time and extent of deprivation, its proportion to the whole premises in value, and to the whole amount of rent to be paid. During all this time, a part of the premises might be available, or if the covenant was intended to cover a total destruction, the land still remained.
On the quarter day preceding the 24th day of August, A.' D. 1854, the quarterly rent became due and payable. The defendants might then have sued for and recovered the amount. It was payable absolutely and unconditionally, the same as any other debt, and was paid without any condition or reservation whatsoever; and though the subsequent fire and destruction thereby might, perhaps, be a good defence against a demand for the next quarterly installment, it certainly cannot be construed into a covenant to refund the rent already due, and paid according to the terms of the lease, or a rule of damages for an alleged breach of covenant to repair. Indeed the rule of damages for a breach of covenant to repair, is prospective, looking to the future profits, and future value of the leasehold estate; the rule of damages for a breach of covenant to deduct a corresponding amount from the rent, in case the lessee should be deprived of any portion of the building, is only partial and temporary, and damages for a breach of the one covenant cannot be predicated upon an alleged breach of the other.
The pleader in this case, seems to have construed the covenant to make and allow a corresponding deduction from the rent, in case the lessee should be deprived of any portion of the building, into a covenant to refund in such a contingency, the rent already paid according to the terms of the lease; and it is evident that such is the view which the court below took of the case. We [484]*484cannot so consider it and are compelled to reverse the judgment rendered below. It seems to us as quite plain that there is no covenant to refund any portion of the rent already paid, but that the covenant relied on has reference to rent to accrue in the future, not yet paid, from which the deduction should be made. As time advanced, after and during the continuance of the privation, the rate of deduction would, or could be noted, and when the next quarter day arrived, a proportionate deduction would be made up to that time; if it still continued, a corresponding deduction would continue to be made until the repair should be completed and the use restored. But this is a very different matter from refunding rent already due and paid.
Since the law of distress for rent has fallen into disuse, or has been abolished in many of the states, the practice of demanding and paying rent in advance has become very general. But the law applicable to landlord and tenant remains essentially the same in most respects, in regard to waste, repairs, destruction of the premises by fire, &c. At common law, destruction of the premises by fire did not excuse the payment of rent. Certainly it would be an unauthorized stretch of construction to convert, a covenant to deduct rent proportionably in cáse of a partial destruction, into a covenant to refund rent already paid, though it is perfectly competent for the parties to make such a covenant if they desire; but they must do so themselves, for the courts cannot do it for them.
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By the -Cowrt,
Smith, J.
This was an action of covenant brought by the defendant in error, in the Milwaukee Circuit Court, as assignee of the lessees, against the plaintiffs in error as the assignees of-the lessor, upon covenants contained in a demise of certain premises known as the “ United States Hotel,” in the ■city of Milwaukee, afterwards destroyed by fire. Judgment in' the court below was rendered upon demurrer to the declaration ; and the main -question presented by the pleadings, and discussed in the argument at bar, is, whether the lessor or his assigns was bound t-o refund the whole or any part of the installment of rent paid in advance, according to the terms of the lease,in case the building should be in whole or in part, destroyed by fire. The lease was for ten years from and alter the 25th day of October, A. D. 1845, at the yearly rent of $1,317.50, payable quarterly in advance. The -lease also provided, that in case the building thereby demised and rented, or any portion thereof, should be destroyed (by fire) without the culpable neg^ ligence of the lessee or his assignees, the lessor or his assigns should cause the same to be repaired and restored with all reasonable dispatch (or that under certain circumstances the lessees might repair), “ and for such time as -the said- lessees (or their [482]*482assignees) should be deprived of the use of any portion of the buildings so destroyed by fire, a corresponding deduction should he made and allowed in the rent of the premises. By another supplemental agreement, the rent was increased to $1,525 per an-num, in consequence of certain enlargements made, but payable in the same manner. On the 24th day of August, 1854, the demised buildings were wholly and totally destroyed by fire, but no effort was made to rebuild them by either party. On the 25th day of July, 1854, the plaintiff below paid the quarterly installment of rent in advance for the quarter commencing on that day, according to the terms of the lease; and this suit appears to have been brought to recover back the proportion of the rent so, paid in advance, to the part of the quarter subsequent to the fire.
We do not propose to enter upon a very critical examination of the pleadings in this case. It is quite apparent that the question presented to the court below, and on which the judgment of that court upon the' demurrer was based, as well as the estimate of the damages then made, was founded, was whether or not, in case of a total destruction by fire, the lessees could recover back any installment of rent, or proportion thereof, paid in advance at the commencement of the quarter, according to the terms of the lease, and the destruction occurring before the expiration of such quarter.
It seems to us that the plaintiff below has mistaken the import of the covenant in the lease, upon the assumed' breach of which his cause of action is based. The language of the covenant referred to is; “ and for such time as the saidTafft and Spurr (the original lessees) shall be deprived of any portion of the buildings so destroyed by fire, a corresponding deduction shall be made and allowed, in the rent of the premises. There is no covenant to refund the rent already paid in case of a partial or total destruction by fire. The covenant simply is, that in case the lessee shall be deprived of any portion of the building destroyed by fire, a corresponding deduction should be made in the rent of the whole premises. When another quarter day should arrive, the lessee could claim his deduction, but the lessor did not agree to refund rent already due and paid. In case one or more rooms should be rendered useless by fire, the lessee could not claim a [483]*483deduction of any portion of the rent due, payable and paid on the preceding quarter day, but he could claim a corresponding deduction from the rent which would become due, and payable on the next quarter day. That this deduction was to be made from rent to accrue, and not from rent already accrued and paid, is obvious from the fact that there is no covenant to repay; from the fact that there is a covenant to repair and restore; and from the fact that in case of neglect of the lessor to repair and restore, an option is given to the lessees to repair and restore; and from the further fact that there must necessarily be an accounting of the time and extent of deprivation, its proportion to the whole premises in value, and to the whole amount of rent to be paid. During all this time, a part of the premises might be available, or if the covenant was intended to cover a total destruction, the land still remained.
On the quarter day preceding the 24th day of August, A.' D. 1854, the quarterly rent became due and payable. The defendants might then have sued for and recovered the amount. It was payable absolutely and unconditionally, the same as any other debt, and was paid without any condition or reservation whatsoever; and though the subsequent fire and destruction thereby might, perhaps, be a good defence against a demand for the next quarterly installment, it certainly cannot be construed into a covenant to refund the rent already due, and paid according to the terms of the lease, or a rule of damages for an alleged breach of covenant to repair. Indeed the rule of damages for a breach of covenant to repair, is prospective, looking to the future profits, and future value of the leasehold estate; the rule of damages for a breach of covenant to deduct a corresponding amount from the rent, in case the lessee should be deprived of any portion of the building, is only partial and temporary, and damages for a breach of the one covenant cannot be predicated upon an alleged breach of the other.
The pleader in this case, seems to have construed the covenant to make and allow a corresponding deduction from the rent, in case the lessee should be deprived of any portion of the building, into a covenant to refund in such a contingency, the rent already paid according to the terms of the lease; and it is evident that such is the view which the court below took of the case. We [484]*484cannot so consider it and are compelled to reverse the judgment rendered below. It seems to us as quite plain that there is no covenant to refund any portion of the rent already paid, but that the covenant relied on has reference to rent to accrue in the future, not yet paid, from which the deduction should be made. As time advanced, after and during the continuance of the privation, the rate of deduction would, or could be noted, and when the next quarter day arrived, a proportionate deduction would be made up to that time; if it still continued, a corresponding deduction would continue to be made until the repair should be completed and the use restored. But this is a very different matter from refunding rent already due and paid.
Since the law of distress for rent has fallen into disuse, or has been abolished in many of the states, the practice of demanding and paying rent in advance has become very general. But the law applicable to landlord and tenant remains essentially the same in most respects, in regard to waste, repairs, destruction of the premises by fire, &c. At common law, destruction of the premises by fire did not excuse the payment of rent. Certainly it would be an unauthorized stretch of construction to convert, a covenant to deduct rent proportionably in cáse of a partial destruction, into a covenant to refund rent already paid, though it is perfectly competent for the parties to make such a covenant if they desire; but they must do so themselves, for the courts cannot do it for them. In some cases advance payment of rent may operate hardly upon the tenant; but it is in his power to provide ample protection by the terms of his lease, and if he fail to do so, and agrees to pay his rent in advance without qualification, and does so, he covenants and pays at his own risk voluntarily, and the courts cannot relieve him.
It was contended on the argument, that the assignment of the breach of the covenant to restore and repair, is sufficient to support the declaration and the judgment rendered upon'it. If it were not perfectly apparent from the declaration and the Whole record, that the breach relied upon, and upon which judgment was rendered, was the refusal to refund that portion of the rent which corresponded to the portion of the quarter subsequent to the fire, there might be an excuse for seelcing after some pretext on which the judgment could be sustained in order to support the [485]*485alleged, and perhaps real, equity of the case. But the manner of assigning the breach or breaches, the causes of demurrer alleged, and the amount of the judgment, as well as the whole burden of the argument here, leave no manner of doubt that the whole claim of the plaintiff below was based upon his assumed right to have that portion of the quarter’s rent correspondent with the portion of the quarter subsequent to the fire, refunded by the defendants below. There is. no doubt that was the subject'of discussion and controversy" in the court below, as it was *n the argument of the case here, and was and is the very matter fairly presented by the pleadings. This is also apparent from the fact that the court proceeded to assess the damages, which upon this view of the case, was proper enough, as it depended upon mere computation, but which in the other view could not have been so done, as to ascertain the damages upon a breach of the covenant to repair and restore would require a different procedure.
Whether or not the covenant to repair or restore has any further extent than to enable the lessees to do so after thirty days in case the lessors should neglect or refuse, and to remunerate themselves out of the rent to accrue, it is not necessary now to determine, though such is the construction we are inclined to think ought to be put upon it.
We are satisfied that the lease does not authorize any claim for the repayment of the rent, or any portion thereof already paid according to the terms of the lease, though the building may have been either in whole or in part destroyed by fire.
Judgment reversed, with costs, and cause remanded, for further proceedings according to law.