PETITION FOR REHEARING. The appellee in this case earnestly contends that this court erred in the original opinion in matters that we shall again review.
It is certain that the destruction of the building by fire would have put an end to the lease except for the clause covenanting to rebuild, for it has been held in the case ofMetzger v. Conley, 82 Ind. App. 520, in a case where a theater building was almost completely destroyed by fire a short time before a lease therefor was to take effect, the owner was not bound to rebuild and repair the same and put it in condition for use as a theater for the reason that the lease was discharged by the destruction of the building.
So in this case the appellant would not, as a matter of law, have been required to rebuild except for the covenant in the lease requiring him to rebuild.
The ordinance and the refusal of the building commissioner to grant the permit prevented his compliance with the terms of his contract; therefore we were justified in holding that the lease was at an end.
Suppose the appellant had done nothing after the refusal *Page 613 of the building inspector to grant the permit; suppose he had not taken possession and put up the building that he did; Would he have been liable? Certainly not. If he had not been liable in the one case, he is not liable in the other.
In our opinion we cited some cases where leases were terminated by the enactment of laws prohibiting the sale of intoxicating liquors where the premises had been rented for that purpose before the enactment of the prohibition law.
The law in that regard is well stated in the case of Schaub v. Wright, 79 Ind. App. 56. This case has been cited with approval in other states.
The appellee contends that in the granting of a building permit, the commissioner has no discretion. That it is simply a matter of form. With this contention we cannot agree. To 4. hold otherwise would be to nullify the building ordinances of South Bend, and the laws of the state granting the powers to the city to enact such an ordinance. The ordinance was valid. The complaint in this case is not based upon any grounds showing that the appellees were denied or prevented from receiving all the benefits. The appellant is not charged with collusion or with fraud. The demand is, live up to the contract, ordinance or no ordinance — permit or no permit. Rebuild is the demand and no alternative.
Wood, Landlord and Tenant, Sec. 316. If one covenants to do a thing which is lawful and a statute comes in and hinders him from doing it the covenant is repealed. See also McAdam, on 5. Landlord and Tenant (1910), p. 1329; Beebe v. Johnson, 19 Wend. 500; People v. Bartlett, 3 Hill. 570; Jones v. Judd, 4 N.Y. 412; Regan v. Fosdeck, 19 Misc. 489;Young v. Leary, 135 N.Y. 569.
Without extending this discussion to an undue length, *Page 614 we desire to cite the following cases: Crowley v. NorthernPac. Ry. Co., 41 L.R.A.N.S. 559, was a case where a carrier contracted to give annual passes in consideration of a grant of land, was held not liable for damages for refusal of further passes before the expiration of the contract period in obedience to a statute making the giving of passes illegal.
In Knoxville v. Bird, 12 Lea. 121, 47 Am. Rep. 326, where it was contended that the passage of an ordinance by a city, forbidding the erection of wooden buildings within fire districts impaired the obligation of a contract existing prior to the passage of such ordinance, between a landowner and a contractor to erect a wooden building, it was held that there was nothing in the objection, and the court quoted from Vol. 2, page 674, Parsons on Contracts, as follows: "If one agrees to do a thing which is lawful for him to do, and it becomes unlawful by an act of the legislature, the act avoids the promise; and so if one agrees not to do that which he may lawfully abstain from doing but a subsequent act requires him to do it, this act also avoids the promise."
And a like result was reached in Binz v. National SupplyCo. (Tex. Civ. App.), 105 S.W. 543, where a contract was made for the construction of an oil plant and an ordinance was subsequently passed prohibiting the completion of the plant.
And where a tenement house is leased "to, to be used and occupied for the purpose of a place of amusement for the exhibition of moving pictures and for no other purposes whatsoever," and the licensing of such shows in tenement houses is subsequently prohibited by an ordinance the lessee is discharged from his obligation to pay rent accruing after the passage of such statute. Adler v. Miles, 69 Misc. 601, 126 N Y Supp. 135.
Petition for rehearing denied. Wood, J., dissents. *Page 615