In his motion for rehearing the plaintiff in error contends that this court erred in holding that the contract contained the implied condition that the lessee was not obligated to return the personal property unless the same was in existence at the time *Page 357 of the termination of the lease. Intention or meaning may be manifested or conveyed either expressly or impliedly. We recognize the principle of law, urged by the plaintiff in error as here applicable, that no terms or conditions can be implied which are inconsistent with the expressed provisions of the contract and which are plain in their meaning. However, "The policy of the law is to supply in contracts what is presumed to have been inadvertently omitted by the parties, the parties being supposed to have made those stipulations which as honest, fair, and just men they ought to have made. Therefore, whatever may fairly be implied from the terms or nature of an instrument is, in judgment of law, contained in it." 12 Am. Jur. 766, § 239. "The general ground of a legal implication is that the parties to the contract would have expressed that which the law implies had they thought of it." Cowles v. Morris Company, 330 Ill. 11 (161 N.E. 150); 17 C. J. S. 779 (40), § 328. We can not but think that there existed in the instant case the implied condition that the parties intended that the personal property should be in existence at the end of the term. Especially do we think this was the intention of the parties in the light of the express provision in the contract with reference to the "premises" that "should the premises be destroyed by fire or so damaged by fire as to become untenantable, this lease shall cease."
The cases of White v. Molyneux, 2 Ga. 124 and Lennard v. Boynton, 11 Ga. 109 are distinguishable from the instant case in that in those cases nothing could arise by implication from the language used in the contracts (notes) which would relieve the defendant from liability thereunder in the event of destruction or death of the subject-matter of the contract, whereas in the instant case such language does exist from which the implication arises. The other contentions in the motion for rehearing are but reiterations of the original contentions of the plaintiff in error which were fully answered in the body of the opinion. The motion for rehearing is therefore denied.
Broyles, C. J., and Guerry, J.,concur. *Page 358