I concur. After more deliberate consideration, I am satisfied that the controlling principle is as stated by the presiding justice.
If the parties had intended to relieve the lessee from liability for any default in case the lessor with knowledge thereof failed to avail himself of the privilege of doing the work himself, it is fair to assume that they would have expressed such intention. We must gather their intention from the language of the instrument itself, and so viewing the situation, it seems reasonable to hold that the lessor did not, by his inaction, waive his right to claim damages from the lessee. As a matter of equity it is to be remembered that the proposition involves the willful violation of his covenant on the part of the lessee and no more than the failure to exercise a privilege on the part of the lessor. It is, therefore, morally as well as legally right that the latter, on the showing made, should be permitted to recover the amount of the damage actually suffered by him.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 7, 1919.
All the Justices concurred.