Action to recover certain rents paid in advance. From an order sustaining a demurrer to the complaint, plaintiff appeals.
The complaint, in substance, alleged that on November 10, 1918, plaintiff verbally rented of defendant, from month to month at an agreed rental of $12 per month, the south one-half of a certain store and office building located in the town of Armour; that on the 14th day of November, 1918, plaintiff paid to defend*78ant rent in advance in the sum of $144; that on the 26th day of November, 1918, ,said store building was completely destroyed by fire; that there is now due and owing from; defendant to plaintiff on account thereof the sum of $137.60 and interest; and that defendant, on demand, has failed and refused to pa) the same to plaintiff.
[1] Appellant assigns as error the sustaining of a general demurrer to said 'complaint on the ground that the same does not state facts sufficient to constitute a cause of action. The contention of respondent is that the lease in question amounted to a leasing for the specified term of one year, and that, in the absence of an express agreement ,to do so, he is not legally obligated to repay said rent money so advanced to him by appellant. In some jurisdictions there seems to be a common-law rule to the effect that, where there is a covenant on the part of the lessee to pay rent for a specified term, and the- leased buildings are destroyed by fire, the tenant is not relieved from the payment of rent unless he has protected himself by a covenant in the lease. Harvey v. Weisbaum, 159 Cal. 265, 113 Pac. 656, 33 L. R. A. (N. S. 540, Ann. Cas. 1912B. 1115. This rule, however, is not in effect in this state, having been changed by statute. Sections 1054 and 1056, Code 19119. These sections of our Code are identical with sections 1933 and 1933 of the California Civil Code.
[2] Respondent cites and relies upon the decision in Harvey v. Weisbaum, which holds that, notwithstanding the termination of the lease by virtue of the statute, still, in the absence of a contract to do so, no obligation exists on the part of the lessor to repay rent in advance for the time the lease runs after the destruction of the property. We are not convinced as to the soundness of this holding, although we are not unmindful of the fact that in Minnesota, under a similar statute, there have been like holdings. Galbraith v. Wood, 124 Minn., 210, 144 N. W. 945, 50 L. R. A. (N. S.) 1034, Ann. Cas. 19151B, 609. Appellants contend that the leasing whs' from' month to month, but we are of the view that whether the leasing was for a specified term of one year or from month to month is not material, as the result should be the same in either case. Section 1054 of our *79statute provides that the destruction of the thing leased terminate;s the lease. This section applies to a lease of a building or a portion thereof, and would apply as well'to a lease from month to month as to one for the specified term of one year. Section 1056 provides that, where a lease is so terminated before the time originally agreed upon, the lessee must pay the due proportion of the rent for the time he has actually made use of the leased property. From- and after the time of the destruction of the leased property, by virtue of this statute, a tenant is under no obligation to pay rent for the balance of the term. Where there has been a destruction of leased property, without fault of the tenant, and where rent has ¡been paid in advance that would have been earned after such ¡destruction, the lessor holds in his hands money for which the tenant has received no value, and which in equity and good conscience belongs to the tenant, and for which an action will lie. A New Jersey .statute, in legal effect, in so far as it relates to the termination of the lease and the ceasing of the obligation of the tenant to pay rent after destruction, is the same as the statute of this state. Under very similar circumstances the Supreme Court of that State, in Carley v. Liberty Hat Co., 81 N. J. Law, 502, 79 Atl. 447, 33 L. R. A. (N. S.) 545, held that rent paid in advance as would have been earned after the destruction of the buildings might be recovered by the tenant.
We are of the opinion that it was error to sustain the demurrer to the complaint. The order and judgment appealed from are reversed, and the cause remanded for further procedure in accordance with this decision.