Harris v. Heackman

Rothrock, J.

I. The plaintiff claimed that the original written lease was lost, and he introduced secondary evidence t. practice in vSupreme court: ünci-mg of court verdict1'of1 as iury-of its contents. It is claimed by appellant' that . x ■> the evidence 'thus introduced was insufficient to sh°w that there was a written lease. We think otherwise. This is a law action, and the finding of the court is to be regarded the same as the verdict of a jury, which is not to be interfered with where the evidence is conflicting. There was abundant evidence on this point to sustain the finding.

II. Tbe lease was for tbe term of five years, and tbe de-fendent expressly agreed to pay tbe plaintiff tbe sum of twelve 2. usase: ac-rent from °as-not\i?s-lcssee charged. dollars per month in advance. It is claimed by appellant that there was only an implied covenant to pay the rent, and that acceptance of rent the plaintiif from tbe assignees of defendant discharged tbe defendant from further liability. But tbe lease is more than an implied, covenant.. It is an express agreement to pay the plaintiif the rent for the term, and, where there is an express covenant to pay tbe rent, the mere acceptance of rent from an assignee of tbe lease does not discharge tbe lessee. Fanning v. Stimson, 13 Iowa, 42; Barhydt v. Burgess, 46 Id., 476. Besides, tbe plaintiif testified that, when he found the other parties in tbe building, he “gave them a receipt for rent on tbe Heackman lease,” and that be looked to Heackman for tbe rent under the lease.

III. Tbe building on the lot was destroyed by fire. At the time tbe lease was executed, and at tbe time of tbe fire, there Strüetion kyS' not disohaig-was a fire limit ordinance in force, by which tbe erection of a wooden building on the lot was prohibited. The rent which is claimed in this action accrued after tbe building was burned. It is claimed that the destruction of tbe building, taken in connection with tbe terms.of the lease, terminated tbe lease, and that defendant is not liable. But tbe defendant made his contract when tbe fire limit ordinance was in force, and, even if it was not then in force, tbe burning of tbe building, would not discharge him from his contract. David v. Ryan, 47 Iowa, 642.

Affirmed.