Retired, concurring specially:
Were it not for a trial court finding1 that appellant (landlord) in No. 9501 refused the theatre tenant (plaintiff below) permission to enter the restaurant for the purpose of constructing whatever soundproofing insulation was necessary, I would be inclined to reverse so much of the judgment for damages as included attorneys fees — a substantial portion thereof. But this finding, unchallenged on appeal, is tantamount to a determination that the landlord prevented the tenant from exercising its rights under Article 22 of the lease executed by Canal Square and Cerberus Theatres.
Had it not been for this interference, I think it clear under the only two relevant provisions of the lease, Article 22 (right of tenant to perform defaulted obligations of landlord upon 30 days notice), and Article 26B (agreement to provide adequate construction and insulation to prevent noise or odors emanating from the restaurant from penetrating to the theatre level), that the only remedy conferred upon the tenant by this instrument (once it became apparent *434that the materials used in the construction of the restaurant were inadequate to protect the theatre programs from noise intrusion) was to erect acoustical barriers in the ceiling below the theatre and to. charge the expense incurred to the landlord as a set-off against its rental obligation. It is not enough to say that an equally or perhaps a more practical alternative remedy available to the theatre was to bring a suit to enjoin the restaurant from violating its oral agreement with the landlord which prohibited live or amplified music. Of course, the theatre did have this right as a matter of law, but there is nothing in the text of the lease that gave it the right to charge the cost of such a suit to the landlord. Article 22 — the reimbursement clause — plainly refers only to such obligations as the landlord undertook in the lease itself, viz., (1) the payment of whatever debts were necessary to prevent the tenant’s premises from being encumbered by liens, and (2) certain construction, maintenance (including the installation of soundproofing under Article 26B), and other warranties expressly set forth in other written provisions of that instrument. Hence, a holding that the reimbursement provisions of Article 22 — which come into play only when the tenant at its own expense performs an obligation of the landlord — also apply to the cost of remedies (in this case the lawsuit) not within the terms and conditions of the lease, seems to me the imposition of an additional obligation never intended by the signatory parties.2
The provisions of Article 22, which permitted the tenant to contract for specified structural improvements at the landlord’s expense when the latter failed to install them, are not unusual in the negotiation of leases in newly constructed office buildings with tenants who propose to occupy an entire floor. Such arrangements are generally regarded as mutually advantageous. Even though the tenant is allowed to bill the landlord for whatever sum he pays to the contractors of his choice, the landlord benefits, for any improvements or repairs to the property revert to him at the expiration of the lease. In contrast, the “alternative” remedy obtained by the tenant in this case conferred no long-term benefit upon the landlord, as the restaurant company against whom the injunction was issued is no longer a tenant and the premises still lack a soundproof ceiling. Thus, from the standpoint of the lessor, the difference between the contracted for remedy and the one resorted to by the lessee was a very real one.
Unless it can be held, as I have suggested, that the legal effect of the landlord’s deterring plaintiff from invoking its right to repair and deduct effected a novation in the lease contract, appellant is correct in contending that the judgment for damages of $60,000 for legal fees and expenses should be set aside.
This is crucial to the disposition of the case on appeal. The majority opinion recognizes that under decisions by which we are bound a prevailing party in an action at law or equity is not entitled — in the absence of contract or statute — to recover fees paid to its attorney. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). See also 1901 Wyoming Avenue Cooperative Association v. Lee, D.C.App., 345 A.2d 456 (1975); F. W. Berens Sales Co. v. McKinney, D.C.App., 310 A.2d 601 (1973).
The majority opinion, however, takes the position that even though reimbursement for attorneys’ fees was not expressly authorized by Article 22 of the lease, such fees were nevertheless recoverable because such provision is comparable to a surety arrangement. The difficulty with this premise is that in the absence of explicit wording in a surety contract- — and the contracts in three of the four state cases cited by the majority contain such language — a surety is not liable for the legal expenses incurred by a creditor in prosecuting an action to recover *435payment, even though the statute requiring the payment bond confers a “right to sue . for the amount . . . unpaid and to prosecute said action to final execution and judgment for the sum or sums justly due him . . . .”3 F. D. Rich Co. v. United States for the Use of Industrial Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). There are no words in Article 22 of the lease which even remotely suggest that the costs of a lawsuit and attorneys’ fees were reimbursable.
. Finding No. 10 (R. 0113-0114) reads as follows:
Prior to the opening of the restaurant, Tenant sought permission to enter the restaurant and itself install the acoustical barriers required to protect the theater from sound interference. Neither the restaurant nor the Landlord would give the required permission.
. At the time the theatre lease was signed by the parties, the lower floor was unoccupied. Thus, the agreement with the restaurant lessee did not exist when the lease to plaintiff was executed and therefore any duty to enforce it could not possibly have been within the contemplation of the parties to the first lease as one of “the Landlord’s obligations thereunder.”
. 40 U.S.C. 270b (1970).