ON REHEARING.
Conaway, Justice.It will be remembered that by the terms of the lease-upon which this action was brought the lessees agreed to yield possession on the first day of May, 1894.
Possession was actually yielded to defendant in error, the lessor by subsequent contract specifying July 1, 1893, as the date when he should resume possession, and he entered into possession on July 2, 1893, under this contract. The lease also contains the following provision:
c ‘ Said lessees further agree to turn over to said lessor all of said property at the expiration of this lease in as-good order and condition as when entered into by them.” It is contended that the phrase ‘ ‘ expiration of this lease ” means the expiration of the term specified in the lease occurring on May 1, 1894; and that the expiration of the lease occurring at an earlier date by subsequent contract, does not come within the meaning of the words “at the expiration of this lease,” as the same appear in the lease. It would seem that the words ‘ ‘ expiration of this lease ’ ’ are too plain to admit of construction, and that it is. *288hardly within the province of judicial construction, to •say that the words mean on the first day of May, 1894; and that such construction would be, in effect, to interpolate a clause in the covenant to return the property in as good condition as when leased, making it read as follows: “Said lessees further agree to turn over to said lessor all of said property at the expiration of this lease in as good order and condition as when entered into by them if such expiration of the lease do not occur until the first day of May, 1894.”
Plaintiff in error cites the case of Reed v. Snowhill, 51 N. J. L., 162, and 49 N. J. L., 292, as sustaining her contention on this point. It is somewhat remarkable that this is the only case really analagous to the case at bar which has been unearthed by the diligent research of counsel on both sides. This circumstance, as well as the eminence of the court rendering the decision, entitles the case to careful consideration at the expense of some time and space, especially as the case is strongly urged by counsel for plaintiff in error as conclusive in her favor upon the point under consideration.
The case of Reed v. Snowhill was an action upon a lease of certain property for a year ending October 1,1884. "The lease contained a covenant that the tenant, on the expiration of the said lease, would deliver up the possession of the said premises to the lessors or their legal representatives in as good repair as the same were at the commencement pf the lease, reasonable wear and tear and damage by fire, war, and trespass only excepted.” (49 N. J. L., 292.)
On the 29th of August, 1884, the parties concluded an agreement in writing, indorsed on the lease, for the surrender of the premises, in these words: “August 29,. 1884. In consideration of David R. Reed, the within named lessee, relinquishing possession of the within described premises to said lessors, on the first day of September, A. D. eighteen hundred and eighty-four, the said lessors do hereby agree to release the said Reed from pay*289ment, on the within lease, of twenty and eighty-five hundredths dollars, leaving a balance due on said lease by said Eeed of forty-one and sixty-five hundredths dollars. The said lessors, however, to allow said Eeed to retain possession and use of the room in said property, in which he shall store his goods, for such reasonable time as will permit him to secure other apartments. Daniel Snowhill.” (49 N. J. L., 292.)
This agreement was executed by the payment of the balance of the rent and the surrender of the premises.
The supreme court of errors and appeals says: “With this ending of the estate or interest in the lands goes also all covenants in the lease which had not matured and become actionable during the continuance of the estate. ”
But the covenant in a lease to restore possession of the leased premises in good condition at the expiration of the lease is held, by all authorities, in case of its violation, to be actionable. And the New Jersey Court does not hold otherwise. It is considered as having matured and become actionable during the continuance of the estate. The right of action accrues, if at all, at the same time with the expiration of the lease and not afterward.
But in the case of Reed v. Snowhill the court says: ‘ £The words ‘on the expiration of said lease, ’ in the covenant, construed as the parties understood them at the time the lease was executed, did not contemplate any other end than the full term for keeping the covenant.”
There is some reason for saying this in that case which does not obtain in the case at bar. The lessors made their demand for repairs soon after the surrender of the lease, but did not bring their action till after the expiration of the original term. They allowed the lessee all this time in which to make the repairs. But was it necessary for them to do so ? Was there sufficient reason for holding that when the parties said that at the expiration of said lease, they meant the first day of October, 1884 ? With all due respect to the eminent court which announced the opinion in the case, I must regard this view as extremely doubt*290ful. If the tenant had committed a large amount of waste during the first half of the term, and the premises had then been taken for public use by condemnation proceedings, and their value in their damaged condition paid in such proceedings, it would have worked the expiration of the lease. Would the lessors have been without remedy for their loss ? And in case of the shortening of the term of the lease by the parties by subsequent contract, and the consequent expiration of the lease at an earlier date, does it follow that the lessor is without remedy for damage done or permitted to the leased premises by the lessee during his tenancy ? With all due respect I must say that this also seems extremely doubtful.
Counsel for plaintiff in error says in a final brief: “The expression ‘at the expiration of this lease’ has been judicially defined by an appellate court of repute.” And refers to Reed v. Snowhill, supra. And further : “ No case has been cited — not one — which would in the least vary or antagonize the definition of the expression laid down in Reed v. Snowhill, et al. The court must assume that the contracting parties used the expression they did use advisedly, and that they meant just what they said, and the words used having a fixed and determined meaning, no other can be given to them.”
The trouble with this is that in Snowhill v. Reed, the court did not attempt to define any words, and did not adhere to the meaning of the language as fixed by definitions of standard authors ; but simply held that when the parties said one thing they meant another. The language is not obscure, or ambiguous, or even technical. Bouvier defines expiration in these words : ‘ ‘ Cessation ; end ; as the expiration of a lease, of a contract or statute.”
There are a number of ways in which a lease may be as. effectually ended as by the lapse of its term: as by merger, by condemnation proceedings, by certain wrongful acts of the tenant, by the death of either landlord or tenant, in case of a tenancy at will, etc. And when the tenancy so terminates before the expiration of the term of *291the lease, the lease is as effectually at an end as if it had expired by the lapse of its term. No rights or liabilities can afterwards accrue under it. But this does not affect rights or liabilities already mature. The covenant in the lease sued on in the case at bar is very broad — sufficiently so to include in its scope actions for damages in the nature of waste, and other actionable damages to the leased property, done or permitted by plaintiff in error during her tenancy, and not repaired at the time of the expiration of the lease, at which time any liability for its breach accrues and matures.
The opinion of the court of errors and appeals in the case of Reed v. Snowhill does not commend itself to favorable consideration. It was rendered over seven years ago, but does not seem to have been either followed or overruled, but rather ignored
The opinion of the supreme court ^an intermediate appellate court), in the same case, seems to be founded in the better reason. We make the following extract: ‘ ‘ The time for performance was the time of expiration of the lease. The lease expired by virtue of the surrender as effectually as it would have expired by the efflux of time without a surrender. ’ ’ The court of errors and appeals does not attempt to deny this. That court simply holds that when the parties used the words “ expiration of the said lease,” they did not mean what they said. We can not consent to follow even that able court in making a contract of lease for parties different from the contract they make for themselves.
The case of Reed v. Snowhill, however, is distinguishable from the case at bar in some of its features. As already mentioned, suit was not brought in that case until after the expiration of the original term of the lease. Nothing was said about the condition of the premises in the contract of surrender. The damage to the property was the destruction of some counters and shelving and the painting of a sign in large letters on the front of the building ; all of which could be repaired. As repair was *292not demanded when possession was taken, it might be considered as waived. In the case at bar the good condition of the premises was particularly mentioned, and stipulated for in the agreement for surrender, showing affirmatively that no waiver of the covenant of the lease was intended. The proposition of Frank C. Marshall was terse and to the point. “I will give you $100 to release me from further care of the place. ’ ’ This is not asking for a waiver of the covenant to return the property in good condition. Besides, it is accompanied with, an assurance that the property shall be returned in good condition.
The damage in the ease at bar for which recovery was had was such that it could not be repaired, and a demand that it should be would have been futile. Nothing could be done after the first of July to avoid the damage to the hay crop that year by the failure to irrigate up to that time. Nothing could be done to prevent diminution of the hay crop for that year, and probably for several, succeeding years, by the trampling of the meadows. As it would have been useless to make such demand no presumption can arise from its not being made. It seems best, however, not to place the refusal to follow the case of Reed v. Snowhill solely on these distinctions, lest it be inferred that, in a parallel case, that case would be followed.
The decision of the case at bar rendered on the original hearing will not be changed. ,
Groesbeck, C. J., and PotteR, J., concur.