#### Rogers v. Rob Roy Plantation Company.

4-7581

186 S. W. 2d 661

Opinion delivered April 2, 1945.

Rowell, Rotoell & Dickey, for appellant.

A. R. Cooper, for appellee.

*430Holt, J.

February 18,1944, appellee, Rob Roy Plantation Company, sued appellant, F. J. Rogers, to recover balance alleged due on a written lease contract entered into between tbe parties April 23,1941. Tbe complaint alleged that appellee leased to appellant approximately 125 acres for a period of three years, beginning January 1,1941, and ending December 31,1943, for a consideration of $125 for tbe first year, $187.50 for tbe second year, and $250 for tbe third year. Tbe lease contract was made a part of tbe complaint and contained, among others, tbe following covenant: “2. Said lands will be used by tbe lessee as bay land and for no other purpose whatever.”

It is further alleged that appellant refused to pay tbe rental due for thé third year and “plaintiff (appellee) further shows that since tbe execution of such lease approximately 25 acres of tbe land has been washed away by tbe river, according to tbe latest survey, leaving only 100 acres in tbe tract tbe defendant Rogers is renting.”

Tbe prayer was for judgment against appellant in tbe amount of $200 plus interest from March 1, 1944, at 6 per cent., amounting to $5, or a total of $205.

February 29, 1944, appellant answered with a general denial, and on March 28th thereafter be filed an amendment to bis answer and affirmatively pleaded as a defense that tbe land described in tbe lease “has been rendered useless by an act pf God, namely, that tbe land was flooded and was not suitable on account of flood for tbe purpose which tbe defendant (appellant) leased tbe said land .for at tbe time, namely, April 1, 1943, and tbe defendant specifically pleads an act of God as a defense to tbe complaint filed herein.” To. this amendment of appellant to bis complaint, appellee demurred on tbe ground that it did not state facts sufficient to constitute a defense to tbe cause of action. Tbe trial court sustained tbe demurrer and upon appellant’s refusal to plead' further, tbe court, upon tbe pleadings, entered judgment for appellee in tbe amount of $205. This appeal followed.

*431Appellant says: ‘ ‘ The appellant is seeking a reversal of the decision of the lower court on the grounds that the lease prepared by the appellee and signed by both parties stated that this land could be used only for one purpose, and that was for the purpose of growing hay as set out in section 2 of the lease. When the court sustained the demurrer to the amendment to answer filed by the appellant herein, it was admitted that the leased land was flooded and not suitable on account of the flood for growing hay, the purpose for which the land was leased, and further, that the appellee, by its own pleadings, admitted that 25 acres had been washed into the river. This being true, it amounted to an eviction of the appellant, as the land could not be used for the purpose for which it was leased, and the appellant should not be held accountable for rentals due under the lease.”

We think appellant’s contention untenable for the reason that there is no covenant or provision in the lease contract in question relieving him of rentals in case of overflow, or an act of God. Under the controlling rule, the lessee in such circumstances is bound to pay the stipulated rent notwithstanding any injury to the leased premises by flood waters, there being no implied covenant that the premises shall be fit for the purpose for which they are leased.

In Little Rock Ice Company v. Consumers Ice Company, 114 Ark. 532, 170 S. W. 241, Judge Hart, speaking for the court, said: “It is the settled rule of the common law that there is no implied covenant by the lessor that the leased premises are in good repair or fit for the intended use, nor that the premises shall continue to be suitable for the lessee’s use or business. 24 Cye. 1048; Horton v. Early, 39 Okla. 99, 134 Pac. 436, 47 L. R. A., N. S., 314, Ann. Cas. 1915D, 825, and cases cited. Clifton v. Montague, 40 W. Va. 207, 21 S. E. 858, 33 L. R. A. 449, and note, 52 Am. St. Rep. 872. In the case of Viterbo v. Friedlander, 120 U. S. 707, 7 S. Ct. 692, 30 L. Ed. 776, the court said that the common law regards a lease for years as an estate for years, which the lessee takes a title in to pay the stipulated rent for, notwithstanding any in*432jury by flood, fire, or external violence ... in tbe absence of fraud or concealment, tbe tenant leases at his peril and the rule in the nature of caveat emptor throws upon the lessee the responsibility of examining the demised- premises for defects and providing against their consequences, beforé he enters into the lease. Watson v. Almirall, 61 N. Y. App. Div. 429, 70 N. Y. Supp. 662,” and in 12 American Jurisprudence, p. 936, § 368, the text-writer says ■. “% 368. Act of God or Inevitable Accident.— The theory that when a party by his own contract creates a charge or duty upon himself, he is bound to make it good, if he may, notwithstanding" any accident by inevitable necessity, because he might have provided against it by his contract, is not infrequently applied where the impediment comes from the act of God. This rule, though it may be harsh in its operation, has been defended on the ground that where one of two innocent persons must sustain a loss, the law casts it upon him who has agreed to sustain it or, rather, the law leaves it where the agreement of the parties has put it, and that the law will not insert, for the benefit of one of the parties, by construction, an exception which the parties have not, either by design or neglect, inserted in their agreement. ’ ’

Applying the above principles, it follows that appellant could not abandon the premises and refuse to pay .the rental under the lease for injury by flood for which he failed to provide in the lease in question.

Accordingly, the judgment is affirmed.