*713DISSENTING OPINION OF
CIRCUIT JUDGE O’BRIEN.Being nnable to agree with the conclusion reached by the majority in this case, I respectfully dissent.
In my opinion, the covenant made by the lessee, “that it will keep all buildings, structures and erections now on the demised premises in good order and repair,’’ obligated the defendant to rebuild the structure destroyed by fire, or to respond in damage for its failure so to do.
Before considering the effect of a covenant to repair contained in a lease, it might be well to consider upon whom the law imposes the duty to make repairs to leased property.
In the absence of statute, or of express covenant, or stipulation in the lease, the lessor is not bound to make ordinary repairs to leased property. Nor is a covenant implied that the lessor will make any repairs to the demised premises. Independent of an expressed agreement on the part of the tenant, and in the absence of the landlord undertaking to keep the premises in repair, the law imposes upon every tenant, whether for life or for years, an obligation to so use the premises that no substantial injury shall be done to them and so that they may revert to the lessor at the end of the term unimpaired by wilful or negligent conduct on. his part.
It has been the established rule of the common law for ages that an expressed covenant to repair, binds the covenantor to make good any injury to the demised premises, which human power can remedy. This covenant embraces not only the buildings on the premises at the date of the demise, but any new buildings erected during the term, unless the contract expresses a different intention, as when it stipulates to keep in repair the demised building.
Decisions extending over a period of three hundred years have held that, unless the covenant to repair is expressly made subject to an exception in case of fire or *714other inevitable accident, the covenantor still remains bound by his agreement to repair, even when the house or other things to be repaired have ceased to exist in specie, owing to some event for which he is not responsible, whether such destruction be due to an accidental fire, lightning, or the act of a public enemy. This rule is the same both in law and equity. Performance of the covenant, under such circumstances, can, it is clear, only be attained by replacing its subject matter, a conception which finds a more distinct expression in the form in which the rule is generally stated, viz., that the tenant must rebuild after the destruction of the leased premises by fire.
The effect of this principle is also to render a tenant still liable on his covenant to pay rent, even though the premises are destroyed by any cause and the obligation of this covenant being distinct of, and unaffected by any qualification which may be introduced for the benefit of the tenant, into the covenant to repair. Hence, even where the covenant to repair is expressly made, subject to an exception of casualties by fire, the tenant remains liable for the stipulated rent, even though the premises have been burned down, and not rebuilt by the lessor.
In Fowler & Moore v. Payne, 49 Miss. 32, 79, the court said: “If a lessee stipulate unconditionally to pay rent without providing for its suspension in any event, and there is no agreement on the part of the lessor to repair, the tenant is without remedy at law or in equity and must pay the rent to the end of the term, though the tenement be destroyed by fire or other accident.”
The reason for this rule usually given by the courts is that the lessee, by his own contract created the charge upon himself, and no fault being imputable to the landlord, he should not be compelled to bear it, as the lessee could, if he had chosen, have relieved himself by a stipu*715lation for the cessation of rents, in the event of such destruction.
Where a party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident, by inevitable necessity, because he might have provided against it in his contract. It is upon this theory that the courts have held that a lessee who covenants to keep the premises in good repair must rebuild all buildings which are destroyed during the term.
The authorities almost unanimously follow the construction the common law placed upon a general covenant to keep demised premises in repair. Only two cases can be found which deviate from this construction and the reason given is by virtue of a statute which changed the common law rule. No such statute exists in Hawaii and we are bound to follow the common law rule in the absence thereof. The Federal appellate courts and the Supreme Court of the United States have approved the rule of the common law and I am unable to understand why the majority have adopted a construction which is diametrically opposed to the ruling approved by these courts. The text books, without exception, follow the common law rule.
In Polack v. Pioche, 35 Cal. 416, 422, the court said: “A general covenant to repair is binding upon the tenant under all circumstances. If the injury proceeds from the act of a stranger, from storms, floods, lightning, accidental fire, or public enemies, he is as much bound to repair as if it came from his own voluntary act. Such has been the settled rule since the time of Edward III. (2 Platt on Leases, 186, 187, and cases there cited.) If the tenant desires to relieve himself from liability for injuries resulting from any of the causes above enumerated, *716or from any other canse whatever, he must take care to except them from the operation of his covenant.”
In McIntosh v. Lown, 49 Barb. (N. Y.) 550, 554, the court said: “The defendants’ covenant in the lease, ‘to keep the buildings and fences in good repair, except natural wear and tear’ bound them to rebuild in case of accidental destruction by fire or otherwise. (Comyn’s Land. and Ten. 185. 3 Black. Com. by Chitty, 229 mar. paging, note. 3 Kent’s Com. 467, 468 marg. pag. Chitty on Cont. 7th Am. ed. 735. Woodfall’s Land. and Ten. 326. Warner v. Hitchins, 5 Barb. 666. Beach v. Crain, 2 Comst. 86-93. Bullock v. Dommitt, 6 T. R. 650. Proprietors of Brecknock and Abergaveny Can. Nav. Co. v. Pritchard et al., Id. 751.) And numerous other authorities which might be cited.”
In Hoy v. Holt, 91 Pa. St. 88, 90, 91, the defendants covenanted “to put said saw-mill in good repair and good working order, and the same so keep; and when all said timber is sawed into lumber and manufactured into shingles, to deliver said saw-mill to said Hoy (plaintiff), in reasonable good condition and repair.” Speaking of this covenant the court said: “It has always been considered that where, in a lease there is an express and unconditional agreement to repair and keep in repair, the tenant is bound to do so, though the premises be destroyed by fire or other accident: See Chit. Con. 336; Ad. Con. 374; Brecknock v. Pritchard, 6 Term R. 750; Bullock v. Drommitt, Id. 650; Leeds v. Cheetham, 1 Simon 146; Digby v. Atkinson, 4 Camp. 275; Phillips v. Stevens, 16 Mass. 238; Linn v. Ross, 10 Ohio 412. * * * ‘When the law creates a duty, and the party is disabled to perform it without any default in him, and he has no remedy over, the law will excuse it, as in waste, if a house be destroyed by tempest or by enemies, the lessee is excused; * * * but when the party, by his own contract, *717creates a duty or charge 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. And, therefore, if a lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he is bound to repair it/”
In David v. Ryan, 47 Iowa 642, 644, the appellant sought to put a construction on the word “repair” similar to the one placed upon it by the majority opinion, and the court said: “If the defendant is liable the liability arises out of her agreement to repair, and this agreement must have the same construction, whatever may be the relation of the parties.' It is claimed that the word ‘repair’ simply means to restore to a good state after-decay, injury, dilapidation or partial destruction, and that it does not require restoration of property wholly destroyed. The word has not been so construed in adjudicated cases.”
In Armstrong v. Maybee, 17 Wash. 24, 29, the lessee covenanted to maintain all machinery and buildings on the leased premises “in as good condition and repair as the same now are in and return the same to the lessor at the expiration of said lease in as good condition as the same are now in, reasonable wear and tear excepted,”— and the court said: “But in the case at bar we are unable, from any fair reading of the whole lease, to find any doubtful language, or anything in the circumstances of the parties which would require other than one construction of the language used. They chose to use language and terms which have had a received meaning in the courts for generations, and though the phraseology may slightly differ from that of contracts under consideration in some of the adjudicated cases, we cannot *718see any distinction in the meaning. We are not able to find any qualification of the general covenant to repair in this lease. The contract is one before the court for construction and enforcement as the lessor and lessee have made it. Our conclusion is that it imposed on the lessee the obligation to rebuild the mill, which was destroyed by fire.”
In Wainscott v. Silvers, 13 Ind. 500, the court said: “The law as between landlord and tenant, we understand to be, that the tenant is not responsible for buildings accidentally burned down, during Ms tenancy, unless he has expressly covenanted, or agreed, to repair.”
In Ely v. Ely, 80 Ill. 532, the court held that the legal effect of the covenant in a lease by the lessee to keep the demised buildings in repair at Ms own expense, and to yield up the premises at the end of Ms term, without any exemption of loss by fire, is that in case the building is burned the lessee will rebuild the same, and such loss will not stop the rent until the building is replaced.
In Nave v. Berry, 22 Ala. 382, 391, the court said: “On the face of the contract, there is the express obligation on the part of the. lessees to deliver up The house, with the lots and appurtenances thereunto attached’ at the expiration of the term. There is no obligation to repair, but simply To deliver up,’ meaning to surrender back to the lessor. The decisions upon this subject make a distinction between an obligation To repair and deliver up’ and one simply ‘to deliver up.’ Whilst the former binds the obligor to rebuild in case of loss by fire during the term, (Phillips v. Stevens, 16 Mass. 238,) the latter is construed to mean simply an obligation against holding over; and if the buildings are burned or destroyed during the term, without the fault of the lessee, he is not bound to rebuild, or to pay for the improvements so destroyed.”
*719In Phillips v. Stevens, 16 Mass. 238, 239, the covenant was “that the defendant would keep in repair, support and maintain all and singular the fences and buildings, saving and excepting the natural decay * * * at his own proper cost and charge,” and Parker, C. J., said: “Although the defendant had under his hand and seal, stipulated that he would keep in repair, support and maintain the fences and buildings, with the exception of natural decay, he was undoubtedly astonished at being called upon to rebuild a house, &c. the use of which he had enjoyed but for one year; and yet he has, in express terms, covenanted so to do. His excuse would be that he never read the covenants in his lease, or that he did not understand the force and effect of the terms. But the law does not protect men from their own carelessness or ignorance. The former they must cure; the latter they must provide against by asking counsel. Any lawyer, in any village of the commonwealth, could have stated the hamrd, and would have guarded against it, by introducing such an exception, as is now generally adopted in mercantile contracts, efire or other casualty excepted;’ which loould make the contract conformable to the intention of both the parties; as the words cdangers of the sea'and inevitable accidents’ do in a charter-party or bill of lading. The case of Walton vs. Waterhouse, and the cases cited.by Sergeant Williams in his note (2) to that case, contain all the law upon this subject; the principle extracted from which is, That although a man may be excused from a duty imposed upon him by the law, if he is disabled from performing it without any fault of his own; yet when, by his own contract, he creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity; because he might have provided against it by his contract.’ This doctrine is recognized and enforced in the case *720of Bullock vs. Dommitt, and in the case from onr own reports, before referred to.”
In Warner v. Hitchins, 5 Barb. 666, 673, the lease contained a covenant on the part of the lessees, to surrender up the possession of the premises, etc., in the same condition they were in at the date of the lease, but there was no covenant to repair. The buildings were destroyed by fire. The court said: “In looking at all the circumstances of the case, I am satisfied that neither party contemplated, at the time the lease was executed, that the tenants were to rebuild the erections, in case of their destruction by fire. This liability is an extraordinary one for the lessee to assume, and when it is intended, it is usually expressed in terms not susceptible of misconstruction. The covenant to repair has been in use for centuries; its appropriate office and design is understood, not only by lawyers but by laymen, and its omission is a strong, reason for supposing that neither party intended, by other provisions, to assume or impose the obligations which it creates. The covenant to repair has always been regarded as imposing a more extended liability, than the covenant to surrender the premises in as good condition as found.”
In Levey v. Dyess, 51 Miss. 501, 506, 508, 509, cited in the majority opinion, the court said: “The intention of the parties is the soul of the contract. The language used is the chief exponent, but the relations of the parties, the subject matter, and, if necessary, the attendant circumstances, may be looked to. In those instruments most commonly in use, such as deeds of conveyance, leases and commercial instruments, certain words and! phrases peculiar to each have, by usage and the decisions of the courts, acquired definite and fixed meanings. When they occur it may be assumed that the parties adopted the sense thus established. But such is the flexibility of *721language, that when technical and formal terms are omitted, and the idea is expressed in popular words, we may expect great variety in the expression. Wé can, perhaps, best determine the extent of obligations assumed by the lessees by comparing their covenant with those most closely resembling it, which have been construed by the courts.” The court, after citing many authorities, proceeds: “We have referred to these cases out of a great number germain to the subject, because the covenants in each of them were closely analogous to that in the case before us. We deduce these principles from the authorities: First, that the lessee is not responsible to the lessor for the accidental, casual destruction by fire of the property demised, unless by his covenants he has made himself so. In construing the covenants, the cardinal rule is the intention of the parties; and the courts will not extend or enlarge the obligations of the lessee for such losses beyond the plain meaning and intention of the parties. If there is not an express stipulation to rebuild or restore edifices and structures destroyed by casualty, or some- covenant which is equivalent thereto, such as a covenant to ‘uphold and repair’ or to ‘repair,’ then the loss must fall upon the reversioner and not upon the lessee. And, lastly, a covenant to redeliver or restore to the lessor in the same plight and condition, usual wear and tear excepted (or other words of like import), does not bind the covenantor to rebuild in case of casual destruction by fire, or impose the burden of the loss on him.”
Williston on Contracts, Vol. 111, Sec. 1967, contains the following: “An express covenant to repair or to keep in repair demised premises, obliges the covenantor not only to repair but to rebuild structures thereon, although the injury or destruction is due to the elements, unavoidable accident, or the wrongful act of a stranger.”
*722' Wood on Landlord and Tenant, Sec. 370, page 590, contains the following: “The distinction between an express and an implied covenant is most marked, in reference to injuries resulting from the elements. Under an implied covenant, the tenant cannot be charged with the duty of replacing buildings destroyed by tempest, fire, flood, or inevitable accident; but under an express covenant to keep and leave the premises in repair, the lessee is bound to make good an injury from any cause not resulting from the act or neglect of the landlord, as the agreement of the parties is merged in the lease, and if it was the intention of the parties to provide against the result of such casualties, it is presumed that such an exception would have been incorporated into the lease.”
In 16 Ruling Case Law, Sec. 605, the following appears : “It is the well settled common law rule that a tenant’s general covenant to repair the demised premises hinds him under all circumstances, even though the injury proceeds from an act of God, from the elements, or from the act of a stranger, and if he desires to relieve himself from liability for injuries resulting from any of the causes above enumerated, or from any other cause whatever, he must take care to except them from the operation of his covenant. Under this rule, if the tenant enters into an express and unconditional covenant to repair and keep in repair, or to surrender the premises in good repair, he is liable for the destruction of buildings not rebuilt by him, though the destruction may have occurred by fire or other accident, or by the act of enemies, and without fault on his part. Under such covenant it has been held that the tenant may be compelled to rebuild in case of total destruction by Are, even though, subsequent to the execution of the lease, the fire limits of the city in which the property is situated are so extended that in rebuilding he must construct a more expensive building than the one burned.”
*723Sutherland on Damages, Vol. 3, Sec. 855, contains the following: “It has been the established rule of the common law for ages that an express covenant to repair binds the covenantor to make good any injury to the demised premises which human power can remedy, even if caused by storm, flood, fire, inevitable accident or the act of a stranger. The covenant embraces not only the buildings on the premises at the date of the demise, but any new buildings erected during the term unless the contract expresses a different intention, as where it stipulates to keep in repair the demised buildings.”
In Black v. La Porte, 271 Fed. 620, 624, decided February 28, 1921, the circuit court of appeals of the eighth circuit, construing a general covenant to repair, uses the following language: “As to the lessee’s liability for the condition of other portions of the leased premises, there was an expressed exception because of wear and tear and reasonable use, and damages by the elements; but the covenant relating to the irrigation system, and the dams which were a part of it, was an- absolute obligation to keep them in repair, and no exception was stated. * * * When the tenant makes an express covenant to repair, he must malte good all damages, not only from processes of ordinary decay, but also from casualty, such as injury or destruction by fire or flood. Dermott v. Jones, 2 Wall. 1, 8, 17 L. Ed. 762; Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115; Brecknock v. Pritchard, 6 T. R. 750; Compton v. Allen, Style, 162, 82 Eng. Rep. 612; Digby v. Atkinson, 4 Camp. 275; Leavitt v. Fletcher, 10 Allen (Mass.) 119; Phillips v. Stevens, 16 Mass. 238; Beach v. Crain, 2 N. Y. 86, 49 Am. Dec. 369; Lockrow v. Horgan, 58 N. Y. 635; Hoy v. Holt, 91 Pa. 88, 36 Am. Rep. 659; Gettysburg Electric Ry. Co. v. Electric Light, Heat & P. Co., 200 Pa. 372, 49 Atl. 952; McKinley v. C. Jutte & Co., 230 Pa. 122, 79 Atl. 244, Ann. Cas. 1912A, 452; David v. Ryan, 47 *724Iowa, 642; Cline v. Black, 4 McCord (S. C.) 431; Ross v. Overton, 3 Call. (Va.) 309, 2 Am. Dec. 552; Crocker v. Hill, 61 N. H. 345, 60 Am. Rep. 322; Fowler v. Payne, 49 Miss. 32; Ely v. Ely, 80 Ill. 532; Nave v. Berry, 22 Ala. 382; Proctor v. Keith, 12 B. Mon. (Ky.) 254; Meyers v. Myrrell, 57 Ga. 518; Armstrong v. Maybee, 17 Wash. 24, 48 Pac. 737, 61 Am. St. Rep. 898; Bradley v. Holliman, 134 Ark. 588, 202 S. W. 469; Lovett v. United States, 9 Ct. Cl. 479; California Dry Dock Co. v. Armstrong (C. C.) 17 Fed. 216; 1 Taylor, Land. & Ten. Secs. 357, 360, 364; 24 Cyc. 1085, 1088, 1089. See, also, Berg v. Erickson, 234 Fed. 817, 148 C. C. A. 415, L. R. A. 1917A, 648.”
In Dermott v. Jones, 2 Wall. 1, 7, the Supreme Court of the United States states the following: “It is a well-settled rule of law,- that if a party by his contract charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him. The application of this principle to the class of cases to which the one under consideration belongs is equally well settled. If a tenant agree to repair, and the tenement be burned doion, he is bound to rebuild. [Citing Bullock v. Dommitt, 6 T. R. 650.] A company agreed to build a bridge in a substantial manner, and to keep it in repair for a certain tinle. A flood carried it away. It was held that the company was bound to rebuild.”
In Osborn v. Nicholson, 13 Wall. 654, 660, 20 U. S. (L. ed.) 695, the Supreme Court of the United States affirmed the doctrine of Phillips v. Stevens, and uses the following language: “If all the buildings upon leasehold premises be destroyed by fire, the lessee is nevertheless liable for the full amount of the rent during the residue of the term. [Baker v. Holtzapffell, 4 Taunt. 45.] And if he has covenanted to repair, he must also rebuild. *725[Phillips v. Stevens, 16 Mass. 238.] So, if a fire occur after the contract of sale, but before the conveyance is executed, the loss must be borne by tbe buyer. [Sug. Vend. 291.]”
In Wattles v. So. Omaha Ice & Coal Co., 50 Neb. 251, 69 N. W. 785, which is contra to the English and American decisions, the supreme court of Nebraska overruled the case of Phillips v. Stevens, which is approved by the Supreme Court of the United States in the above citation. The court admits, however, that the rule stated in Phillips v. Stevens is the common law rule and states if such liability existed at the common law, the law is modified in this respect by a statute providing that in the construction of instruments concerning the conveyance of real estate or any interest in real estate, it shall be the duty of the courts to carry into effect the intent of the parties so far as can be collected from the whole instrument. That this court is bound by the decisions of the Supreme Court of the United States needs no citation of authority.
In Tiffany on Landlord and Tenant, Vol. 1, Sec. 116 (p. 763), after stating the rule that where a tenant expressly covenants to repair and keep in repair premises, he is bound to rebuild in case of accidental fire, etc., the following reference to the ruling made by the supreme court of Nebraska in the Wattles case, appears: “In one state the view has been taken that the word ‘repair,’ meaning not to make a new thing, but to refit or malee good an existing thing, does not require the tenant to rebuild upon the destruction of the building on the premises. However reasonable this view may be when there is a total destruction of a building on the premises, it does not seem applicable when a part only of a building is destroyed, since the reconstruction of that part involves the repair of the building considered as a whole.”
In Jones on Landlord and Tenant, page 433, after *726stating that, “It is the established rule of the common law that an express covenant to repair binds the covenantor to make good any injury which human power can remedy, even if caused by storm, flood, fire, inevitable accident, or the act of a stranger,” the author refers to the Wattles case with the following comment: “This doctrine of construction was severely criticized and with the aid of a statute repudiated.”
In Realty & Rebuilding Co. v. Rea, 194 Pac. 1024, 1028, the supreme court of California overruled the case of Polack v. Pioche, 35 Cal. 416,.by virtue of section 1644 of the Civil Code. The court in discussing the Polach case and its reasons for overruling it says: “Moreover, even assuming that the case under discussion goes to the extent of requiring a rebuilding of a structure totally destroyed by fire without the fault of the tenant, and that such was the rule of the common law, that rule cannot be followed in the instant case. The rule is at most a rule of construction and is necessarily subject to such contrary or inconsistent rules of construction' as may have been devised and promulgated by our own legislature. In 1872, after the decision in Polack v. Pioche, supra, section 161/1 of the Civil Code was adopted, providing: ‘The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning * * * unless a special meaning is given to them by usage, in which case the latter must be followed.’ ”
In- 10 California Law Review, page 44, after stating that the supreme court resorted to section 1644 of the Civil Code in overruling the case of Polack v. Pioche, the following appears: “Though such a method of approach causes a temporary shock to one familiar with the ordinary covenants in leases as interpreted by the courts of common law, it is probably a sane one. The design of the Civil Code is obviously that the contract of hiring should *727be treated in the main like other contracts; the simplification and unification of the law that will be brought about by subsuming the landlord-tenant relation under the obligation concept rather than under the dominion concept will ultimately work for better results. Meanwhile it is of interest to observe how far the law has travelled' in its desire to carry out the ‘intent of the parties’ principle, a fundamental postulate of modern society. Under feudal principles, it was at least questionable whether a tenant for years was not liable, even without fault, and independently of stipulation, for permissive waste, where buildings were destroyed by fire. In the classical period of our law, where the written word controlled with almost absolute tyranny, the tenant was held to the letter of his promise.”
In Sun Insurance Office v. Varble, 103 Ky. 758, 763, 41 L. R. A. 792, the common law rule is recognized and by virtue of a statute the general covenant to repair does not require a lessee to rebuild. The court said: “At common law, when the lessee expressly covenanted to repair, his liability was not confined to cases of ordinary and gradual decay, but extended to injuries done to the property by fire; and, if the premises were entirely consumed, he was bound to restore them within a reasonable time. Redding v. Hall, 1 Bibb, 536; Bohannons v. Lewis, 3 T. B. Mon. 380. At common law the tenant was bound to pay the rent, though the premises should be destroyed by inevitable casualty, unless he, by contract, provided otherwise. Helburn v. Mofford, 7 Bush. 169. The common law has been abrogated by our statutes. Section 2297, Ky. Stat. reads as follows: ‘Unless the contrary be expressly provided for in the writing, no agreement of a lessee that he will repair, or leave the premises in repair, shall have the effect of binding him to erect similar buildings, if without his fault or neglect the same may be destroyed by fire or *728other casualty, nor shall a tenant, unless he otherwise contracts, be liable for the rent for the remainder of his term of any building-leased by him, and destroyed during the. term by fire or other casualty without his fault or neglect.’ ”
In O’Neil v. Flanagan, 64 Mo. App. 87, 89, the court points out that by virtue of a section of the' Revised Laws of Missouri a lessee is released from the obligation to rebuild where the lease contains a general covenant to repair. The court said:. “The suggestion is also made, that the provisions of- section 2393, supra, are broad enough to relieve the defendant of his obligation to pay rent. Counsel misconceives the object and purport of the statute. As heretofore stated, the section was enacted to relieve lessees from the obligation to rebuild, where the lease contained a general covenant to repair.”
In Richmond Ice Co. v. Crystal Ice Co., 37 S. E. 851, 853, the supreme court of appeals of Virginia uses the following language: “The claim of the plaintiff is resisted upon the ground that the buildings upon the leased premises Avere destroyed, Avithout fault on the defendant’s part, by an ice gorge in James river, and that under such circumstances it is relieved, by section 2455 of the Code, from obligation to pay the rent demanded. That section is in these words. ‘No covenant or promise by a lessee to pay the rent, or that he will leave the premises in good repair, shall have the effect, if the buildings thereon be destroyed by fire or otherwise, without fault or negligence on his part, or if he be deprived of the possession of the premises by the public. enemy, of binding him to make such payment or erect such buildings again, unless there be other words showing it to be the .intent of the parties that he should be so bound. But, in case of such destruction, there shall be reasonable reduction of the rent, for such time as may elapse until there be again *729upon the premises buildings of as much value to the tenant for his purposes as what may have been so destroyed; and, in case of such deprivation of possession, a like reduction until possession of the premises be restored to him.’ At common law, if a lessee covenanted or promised to pay rent or leave the premises in good repair, he was held bound to fulfill his undertaking, notwithstanding the buildings on the premises were destroyed during the term, by fire or otherwise, without fault or negligence on his part, unless it was stipulated to the contrary in the lease. The revisors of 1849 proposed to change this harsh rule, and reported a section for that purpose, which has since been enlarged and carried into the section quoted from the present Code.”
In Ashby v. Ashby, 46 Atl. 522, 527, a beneficiary under a will was given the privilege to continue to occupy a mill under a requirement that he keep it in good repair, and the supreme court of New Jersey said: “The terms imposed upon the complainant by his father’s will, under which .he continued to hold the property, and was in possession at the time the work was done, obliged him, as stated, to ‘keep the property in good repair at his own proper cost,’ and to pay for ‘all needed repairs.’ These provisions contained no exceptions relieving the complainant from repairing the property to the extent that it might deteriorate by wear and tear, by the elements, or by any other cause. He had agreed by accepting the continued possession to keep it in good repair, without regard to the cause which occasioned the dilapidation. In Navigation Co. v. Pritchard, 6 Term. R. 750, there was a covenant ‘to uphold and keep in complete repair for seven years’ a bridge. Destruction was caused by a flood, and it was held, in the absence of some exception covering this mode of loss, that the covenantor must rebuild.” No doubt the court had in mind that the words “in good *730repair” had acquired a definite and fixed meaning by usage and the decisions of the courts. When they are used it must be presumed that the parties adopted the sense thus established.
I am unable to agree with the following statement contained in the majority opinion: “The word 'now’ contained in the present lease must therefore be accorded some meaning and in our opinion that word clearly implies that the contracting parties had in mind the continued existence of the thing to be kept in repair.” In my opinion the word “now” simply limited the lessee’s liability to repair the buildings situated on the premises at the date the lease was executed. A general covenant to repair embraces not only the buildings on the premises at the date of the demise, but any new buildings erected during the term unless the contract expresses a different intention, as when it stipulates to keep in repair the demised buildings. That this exception was contemplated in the lease in the case at bar is quite clear. The covenant that it will keep all buildings, structures and erections now on the demised premises in good order and repair, limited the obligation of the lessee to repair the structures, erections and buildings which were on the premises at the date the lease was executed.
In Armstrong v. Maybee, 17 Wash. 24, 25, the lessee covenanted that “he (lessee) will maintain all the said mill, machinery and buildings in as good condition and repair as the same are now in, and return the same to lessor at the expiration or termination of this lease in as good condition as the same are noto in, reasonable wear and tear from ordinary use alone excepted.” A building was destroyed by accidental fire, and the court held that it was the duty of the lessee to rebuild, in view of his covenant to repair. In my opinion it could be urged with more force than in the case at bar, that the word “now” in *731the lease in the above citation implied that the contracting parties had in mind the continual existence of the thing to be kept in repair. In deciding that the lessee must rebuild the destroyed building, the court cites Taylor on Landlord and Tenant (8th ed.), Sec. 364, and adds that this citation states the rule which is approved by the great weight of authority. Taylor uses the following language : “Under an express covenant to repair, the lessee’s liability is not confined to cases of ordinary and gradual decay, but extends to injuries done to the property by fire, although accidental; and even if the premises are entirely consumed, he is still bound to repair within a reasonable time. And the principle applies to all damages occasioned by a public enemy, or by a mob, flood, or tempest. Thus where the covenant is to repair in general terms, or to repair, uphold, and support, or however otherwise phrased, if it undertakes the duty of repair, it hinds the lessee to rebuild if the premises are destroyed. For this reason, and in order to afford some protection to the tenant, it is customary to introduce into the covenant to repair, an exception against accidents by fire, tempest, or lightning.”
The rule announced in the above authority is recognized in Bowler v. Ahlo, 11 Haw. 357, 360, where Judge Frear uses the following language: “The covenant to maintain the premises in repair, &c., if made without express exception or qualification, is held (perhaps by a somewhat strained construction) to be an absolute undertaking with no implied exceptions, and the obligation continues though a house forming part of the premises be destroyed by fire; the tenant is obliged to rebuild. Bullock v. Dommitt, 6 T. R. 650. Hence, it is .usual to expressly except damage by fire or other unavoidable casualty.”
The majority opinion cites the case of Gavan v. Nor*732cross to sustain the contention that the covenant to repair does not obligate the lessor to rebuild in case the building is destroyed by fire.
In 3 British Buling Cases, page 352, after stating: “It has been the established rule of the common law for ages that an express covenant to repair binds the covenantor to make good any injury which human power can remedy, even if caused by storm, flood, fire, inevitable accident, or the act of a stranger. Leavitt v. Fletcher (1865) 10 Allen, 119 (wherein the express covenant of the lessor ‘to make all necessary repairs on the outside of the building’ was held to bind him to rebuild a carriage house which collapsed from the weight of snow upon the roof),” the following comment is made (p. 354) : “In Gavan v. Norcross (1903) 117 Ga. 356, 43 S. E. 771, 13 Am. Neg. Rep. 495, there was no covenant to repair on the part of the landlord, but the court merely said: ‘The word ‘repair’ means to renew or to restore an existing thing, — not to make a new one. A covenant to repair ordinarily does not bind the landlord to rebuild, though there are cases in which the word ‘repair,’ aided by the context, has been held to mean ‘rebuild.’ ’ ”
In Allen v. Culver, 3 Denio (N. Y.) 284, 294, the following appears: “There is no doubt but that by a covenant to repair, like the present, the lessors are bound to rebuild, in case of total destruction by fire; and that the lessee may have his action, to recover the damages sustained by reason of the non-performance of this covenant. It has been repeatedly adjudged, that on a general covenant by the lessee to repair, he is bound to rebuild, in case of an accidental fire by which the buildings are destroyed; and I see no principle by which the lessors under such a covenant can be excused” (citing Bullock v. Dommitt, 6 T. R. 650; 4 Kent’s Com. 467).
In Leavitt v. Fletcher, 10 Allen (Mass.) 119, 121, the *733lessor covenanted to make all necessary repairs, etc., and the court said: “That an express covenant to repair binds tbe covenantor to make good any injury which .human power can remedy, even if caused by storm, flood, fire, inevitable accident, or the act of a stranger.”
In Moore v. Sun Printing & Publishing Ass’n, 101 Fed. 591, 593, the circuit court of appeals of the second circuit affirmed the doctrine announced in the above citation, stating: “Thus it has always been settled that when a lessee has covenanted in his lease to keep the demised premises in good order, and surrender them to the lessor at the expiration of the term in as good order as they were originally, he is bound to rebuild, although the premises are meantime destroyed by an accidental fire” (citing Leavitt v. Fletcher).
In 3 British Ruling Cases at pp. 352, 353, cases are collected which contained a covenant to repair by the lessor and the following appears: “[In] Crocker v. Hill (1881) 61 N. H. 345, 60 Am. Rep. 322, * * * the lessor covenanted ‘to make all necessary repairs on the outside of the buildings, upon notice to him,’ and fire consumed the stable of the premises. The court said: ‘By an ancient rule of construction, the defendants [lessors] covenanted to make all necessary repairs on the outside of the buildings, without express exception of loss by fire or other unavoidable casualty, required him to construct the outside of the stable in place of the one destroyed in a reasonable time after notice. * * * The defendant cannot complain of the hardship imposed upon him of repairing a loss for which he was not responsible and in no fault; for it was a hardship assumed by himself in his covenant, and against which he might have contracted.’
“And so it was held in Green v. Eales (1841) 2 Q. B. 225, 1 Gale & D. 468, 11 L. J. Q. B. N. S. 63, 6 Jur. 436, *734that the lessor of a house in a borough, who covenants to repair and keep in repair all the external parts of the demised premises, is bound to restore the wall of the demised house which falls after the borough corporation, acting under a local statute, passed after the demise, pulls down an adjoining house, which leaves the wall exposed and without support.
“So, in Saner v. Bilton (1876) 7 Ch. D. 815, it was held that a covenant of the lessor to ‘keep the main walls and main timbers of the warehouse in good repair and condition’ obliged him to put the Avails and main timbers in good repair after they have sunk and bulged outwards upon the breaking of one of the floors of the warehouse when the lessee, in a reasonable and proper manner, stored grain therein.
“In Reno v. Mendenhall (1894) 58 Ill. App. 87, where the lessor ‘covenanted to keep the buildings in good repair,’ and two stories were burned from one building, leaving the basement roofless, and another frame building was thrown down to prevent its destruction by the same fire, the contention was made by counsel for the lessor that the restoration of the small building to its condition before the fire, and putting a roof over the basement, Avould not be repairs, but the court thought otherwise and so decided, although it did say: ‘But, even if their view be correct, it has been held that a covenant to repair on the part of the lessor includes the duty to rebuild in case of loss or destruction by fire.’
“In Myers v. Burns (1861) 33 Barb. 401 affirmed in (1866) 35 N. Y. 269, the lessors’ covenant ‘to keep the hotel and premises in good and necessary repair during the term, at their own proper charge and expense,’ obligates them to remedy a defect in the flues of certain rooms, which would not draw, or conduct away the gas and smoke, in order to make them inhabitable and useful *735for hotel purposes. In this case the character of work required to he done on the flues does not appear, hut it is a matter of common knowledge, that, in order to remedy defects .as serious as those appearing in this case, the chimney invariably has to be reconstructed. The court said: ‘The word ‘repair’ (which signifies restoration to a sound state, after decay or injury), used in connection .with the word keep (one of the significations of which is to maintain), can mean nothing else than that the premises were to be made and maintained in a state fitted for the uses to which they were appointed. Good and necessary repair expresses the condition they were to be in at all times during the continuance of the term. No one doubts but the four rooms on Hicks street were out of repair; for no one can doubt that in a climate like ours, when firé is a necessary comfort nine months in the year, rooms with flues which were unfitted to carry off the smoke and gas were not fitted for human habitation, and therefore not in the condition contemplated and intended by the parties to the lease.’ ”
The lessee having failed to expressly exempt damage by fire or other inevitable casualty in the lease, its covenant to keep the premises in good order and repair, in my opinion, required the defendant to rebuild the destroyed building or to respond in damages for failure so to do.