delivered the opinion of the court, March 22d 1880.
But one question is presented: If the spring water which was supplied in the summer of 1871 was then sufficient for the use of the house, was Ward bound to keep up a supply equal to that whether the spring kept up or not ? The court charged that he was so bound, “ because Mr. Ward agreed to supply the house with spring water under that certain agreement between John O. Ward and O. L. Ward, dated January 19th 1866.”
It is contended by the defendant in error, that this is an isolated expression on a matter not contested, and the controversy was wholly, whether the deficiency was not owing to the increased quantity required on account of the lessee’s improvements. That such was the chief point respecting the water supply, is apparent in the testimony, yet there is evidence to which the instruction' complained of is applicable. Mr.Vance testifies : “ May 11th 1874, 1 went into possession. A very few days after, cleaned out the reservoir; it was quite a dry time, and Í had to draw water continually. Probably would not have had to draw water so quick, if it had not been for cleaning the reservoir.” Hence it cannot bo said, that if the instruction was erroneous it worked no injury to *502the defendant. It enabled the jury to include damages when there was a deficiency by reason of failure in the spring.
The lessor covenanted that the house should be supplied with spring water in the same manner as then supplied under his agreement with C. L. Ward, the lessee to keep the pipes in repair inside the house, and the lessor those outside. He also agreed “ that the covenants made by C. L. Ward, in his agreement of January 19th 1866, should be kept. Here is an express stipulation in reference to water supply by the pipes then laid from the house to the spring, and in operation, and that the lessee should have its use during the term, “ to be furnished and supplied with the same, and by and through the same pipes and faucets which are now used for said purpose, or by and through other pipes and faucets of the same dimensions.” If the water failed because of drought, or other natural cause, which neither party could prevent, it was no breach of any covenant, express or implied, for its supply. The lessor did not undertake to lay pipes to other fountains, or furnish water in any other way than as supplied at the time of making the contract. He did not agree to furnish water in caso drought dried that spring. We are of opinion it was error to instruct the jury that he was bound to supply water, equal to the supply in 1871, whether the spring kept up or not.
Judgment reversed, and venire facias de novo awarded.