Mr. Justice Paxson
delivered the opinion of the court,
The mill in controversy having been destroyed by fire during the defendants’ occupancy of it, and before they had completed the cutting and manufacturing of the timber purchased of the plaintiff, the defendants allege that they are under no liability to rebuild, or compensate the plaintifffor his loss, because the contract between the parties was not a lease; but that it was a sale as to the timber, and a bailment as to the mill. It is not important by what name we call the contract. It is material to know what the parties agreed to do. Briefly stated, the plaintiff sold to the defendants his timber upon a certain • tract of land at a stipulated price per thousand feet, with the privilege of a portable steam saw-mill belonging to plaintiff and upon the premises, for the purpose of manufacturing said timber. The defendants covenanted “to put said saw-mill in good repair and good working order, and the same so keep; and when all said timber is sawed into lumber and manufactured into shingles, to deliver said saw-mill to said Hoy (plaintiff), in reasonable good condition and repair.” Now, whether we call this a lease or a bailment, the covenant remains, and the defendants must show that they have performed it, or that they are excused from its performance by some legal reason.
It has always been considered that where, in a lease there is an express and unconditional agreement to repair and keep in repair, the tenant is- bound to do so, though the premises be destroyed by fire or other accident: See Chit. Con. 336; Ad. Con. 374; Brecknock v. Pritchard, 6 Term R. 750; Bullock v. Drommitt, Id. 650; Leeds v. Cheetham, 1 Simon 146; Digby v. Atkinson, 4 Camp. 275; Phillips v. Stevens, 16 Mass. 238; Linn v. Ross, 10 Ohio 412; And it is no defence to the claim for rent that the premises had been destroyed by fire, and that the landlord had received the insurance money: Magaw v. Lambert, 3 Barr 444; Fisher v. Milliken, 8 Id. 121; Dyer v. Wightman, 16 P. F. Smith 427; Bussman v. Ganster, 22 Id. 285. The ease of Pollard v. Shaffer, 1 Dallas, 210, was cited as sustaining a contrary view. But in that case.it was specially pleaded by the defendant “ that an alien enemy, to wit, the British army, commanded by General Sir William Howe, on the 1st of September 1777, had invaded the city of Philadelphia, had taken possession of the premises, and held the same until the end of the term, and afterwards; and that during the period they held possession, they had committed the waste and destruction,” &c. In the case in hand the injury was not occasioned by the act of God or a public enemy. It was an accident, not necessarily the fault of the defendants, but one which they could have protected themselves against, either by an insurance, or by an exception in the contract. The latter is very common in this state; indeed, there are few leases here that do not contain an exception in case of fire. This is the reason, in all probability, why our books are so meager of authority upon this point.
It is conceded that the contract in controversy is not technically a lease. It is, however, one of a class quite common in the lumber regions, and known as timber leases. In such cases the timber is paid for at fixed rates, and such possession of the premises given, and for such time, as is necessary to remove it. And there is an analogy between this contract and ordinary leases of real estate so far as the liability to repair is concerned. If, however, the defendants are right in their position, that the contract was a mere bailment of the mill, their covenant is still in their way. For while it is undoubtedly the general rule in case of bailments, that if the thing hired is lost or injured by inevitable casualty, or by superior force, and without any fault of the hirer, he is exonerated from all risk: Story on Bailments, sect. 408. Yet the rule is laid down by the same eminent authority, that bailees may be responsible for accidents by special contract: Id. 29. If the defendants were bailees of the mill, they were so by special contract, with a special covenant to repair, and the cases cited of common-law bailments do not apply. The one raises a duty created by the party, the other a duty created by the law. The distinction between them is well defined by Sergeant Williams in his edition of Sir Edward Saunders’s Reports (2 Saund. 69); Walton v. Waterhouse, Id. 422, note (2.) “ When the law creates a duty, and the party is disabled to perform it without any default in him, and he has no remedy over, .the law will excuse it, as in waste, if a house be destroyed by tempest or by enemies, the lessee is excused; so in escape, if a prison be destroyed by tempest or enemies, the gaoler is excused; but when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And, therefore, if a lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he is bound to repair it.”
It is a reasonable interpretation of this contract that the parties contemplated the return of the mill when the contract was over, “ in reasonable good condition and repair.” The contract so stipulates. The defendants were to put the mill in good order and repair, and keep it so. This was doubtless with a view to enable the plaintiff to manufacture the balance of his timber after the defendants had ceased operations. Not only was this the plaintiff’s understanding of the contract, but he appears to have given a consideration for it. He says, in his testimony: “I reduced the price of the timber down to $3.50 for their timber, when the Snow Shoe Company got $5 for their timber. So I made a reduction for repairs of the mill that I should get a good mill and put down the price of the timber.” This testimony does not appear to have been contradicted. The plaintiff having made an abatement in the price of the timber for the very purpose of having the mill restored to him in good order, and the defendants having covenanted to restore, no sufficient reason has been shown why they should not be held to their covenant.
The judgment is reversed, and a venire facias de novo awarded.