I am not able to concur in the opinion of the court in this case. In my judgment it was properly decided at the trial and the plaintiff was entitled to the judgment directed in her favor. I agree to the proposition that her right is to be ascertained by strictly legal rules. The decision of the court below proceeds upon the theory of a promise in law inferable from the terms of the fire clause of the lease and requiring the defendant to repay to the plaintiff what is designated as unearned rent of the premises. Unless, by a fair construction of that clause of the lease, a promise to return that unearned rent can be implied the judgment cannot be sustained. The question, therefore, is whether upon a proper construction of that clause to ascertain the intention of the parties, they have so contracted that the defendant is entitled to retain the whole amount of money paid as the first installment of rent on April 18, 1899. While there are three conditions contemplated by that clause, each of which may operate separately, yet to ascertain intention the clause must be construed as an entirety. It próvides, first, that if the premises shall be partially damaged by fire, the same shall be repaired as speedily as possible at the expense of the lessor; second, in case the damage shall be so extensive as to render the building or buildings untenantable, the rent shall cease until such time as the building shall be put in complete repair; third, that in case of the total destruction by fire or otherwise, the rent shall be paid up to the time of such destruction and then and from thenceforth the lease shall cease and come to an end. These branches of one stipulation covering three contingencies evidently contemplate that the lessee should have the full enjoyment of the term, in consideration of the rent paid, or should pay only for so much of the term as she enjoyed. If the damage by fire rendered the building or buildings untenantable, the rent should cease until such time as the premises were put in complete repair. That provision clearly shows *140that it was the intention of the parties that rent should be paid only during the time actual enjoyment of the premises was possible, and that construction is not impaired by the subsequent provision in the same clause, that in case of total destruction the rent should be paid up to the time of such destruction. When all of the provisions of the fire clause are given effect, the interpretation of them by the trial judge is fully justified. That clause is not a provision identical with the right of a tenant to surrender under section 197 of chapter 46 of the General Laws (The Real Property Law, Laws of 1896, chap. 547). It is an agreement between the lessor and the - lessee by which the lessee abandons a right she had under the s'tatutq. Under the section cited she had the right to surrender 'the premises when they became -untenantable and xmfit for occupancy as well as when they were totally destroyed. By the terms of this lease, she was still bound to the term if the premises became untenantable, the landlord being under the obligation to restore them to a tenantable condition. During that period the rent was to cease. If on the nineteenth day of April, or at any other time, the premises had been damaged by the elements so as to be rendered untenantable, she would still have been bound to the term, the lessor being obliged to put them in repair, and by the stipulation of the lease, the rent for the period required to make those repairs would have ceased. That merely means that during that period the lessor would not have been entitled to any rent, and the fact, that by his own stipulation he was not entitled to rent during that period would have raised the implied promise that he should return what he had received in advance for that period. As said before, the obvious purpose of this contract between the parties was that for the rent paid-the lessee was entitled to the enjoyment of the premises, and when that became impossible, the consideration failed and there arose an implied promise to pay back so much of-it as the lessor had received.
The judgment was right and should be affirmed.
O’Brien, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.