The first and seventh instructions asked for by the defendant could not have been properly given. They state propositions only applicable in actions of tort for an injury occasioned by the misfeasance or nonfeasance of the defendant. This case proceeds wholly upon the ground of a breach of contract by the defendant to put the premises occupied by the plaintiff in good repair, and so keep and maintain them. The defendant cannot excuse the non-performance of his contract by proof of the plaintiff’s negligence and want of care. The promisor will be discharged from liability if he be prevented by the act or default of the promisee from performing the contract, but no such claim is made in this case.
The second instruction asked for seems to be founded on the same misapprehension, and confounds the well-established distinction above stated. Upon the question of damages and only in reduction of them, the conduct of the- plaintiff in failing to exercise due care to prevent injury to himself by the defendant’s failure to perform his contract was proper for the consideration of the jury. He can recover only for the consequences of the wrongful act of the defendant, and not for damages which might have been avoided by ordinary care on his part. Sherman v. Fall River Iron Works, 2 Allen, 524. No instructions were asked or objected to upon the rule of damages.
The third, fourth and eighth instructions prayed for, which substantially required the judge to rule that the defendant was bound under his contract only to the exercise of ordinary and due care in putting and keeping the premises in reasonable repair, are embraced in the instruction given as to the degree of foresight and prudence which the defendant was bound to use and in the rule stated that the injury from the storm must be owing to this want of repair. The instructions given were certainly sufficiently favorable to the dele dont. As a general rule *555the performance of a contract is not excused by the occurrence of an inevitable accident or other contingency, although not foreseen or within the control of the party. The covenant of a lessor or lessee to repair is not discharged by the destruction of or injury to the premises by lightning, fire or wind. Chit. Con. (10 Amer. ed.) 803, and cases cited. In Brecknock Co. v. Pritchard, 6 T. R. 750, under a covenant to build a bridge in a substantial manner and to keep it in repair for a certain time, the party is bound to rebuild the bridge, though broken down by an extraordinary flood.
The fifth request for instructions asked was not authorized by any evidence in the case. There is nothing to show that the plaintiff ever approved of the repairs made, or waived his right to require more or better repairs to the premises.
The instructions given to the jury stated the role of the defendant’s liability to repair under his contract with sufficient accuracy.
Exceptions overruled.