128 HARVARD LAW REVIEW. destruction of the property leased should have any effect upon a covenant to pay rent if partial destruction has none. The only ground for relieving in the former case is because there has been a failure of consideration. If this is true, it follows that there is a partial failure of consideration in the latter case. In one case it was intimated that a calamity occurring before the tenant was entitled to possession under the lease, although not causing the total destruction of the property, entitled the tenant to rescind the lease,^ but this distinction can hardly be supported. A contract to make a lease should stand on the same footing as a contract to convey a freehold estate, though this is not clearly admitted in the cases.^ The distinction between an actual lease and a contract is ob- vious. In the first case the lessee acquires by the deed an actual legal estate. If that is what he bargained for, it is clear that im- mediately after the conveyance he has received the consideration for the rent. No further performance is due from the lessor. This would be abundantly clear if rent were customarily paid in a lump sum on execution of the lease, instead of in instalments at stated periods. It is, therefore, not a little odd to find it universally ad- mitted that it is a harsh rule of strict law which requires a tenant ii8 Mass. 125, 128; Graves v. Berdan, 39 Barb. 100, 26 N. Y. 498: Hilliard v. New York, &c., 41 Ohio St. 662,666; Harrington v. Watson, 11 Ore. 143, 145; Hahn v. Baker Lodge, 21 Ore. 30, 34; Conn, Mut. Life Ins. Co. v. United States, 21 Court of Claims, 195, 201. But in Kentucky the English law is followed, Helburn v. Mofford, 7 Bush, 169. 1 Wood V. Hubbell, 10 N. Y. 479, 487. Compare Edwards v. McLean, 122 N. Y. 302; 2 In Bacon v. Simpson, 3 M. & W. 78, it was held that a plaintiff who contracted to assign a lease of a furnished house could not recover damages from one who contracted to buy it, and refused to perform on account of partial destruction because he himself was not ready to perform. It is true the action w^as at law, and the lease included personal as well as real property, but the decision is not rested on these grounds. In Counter v. Macpherson, 5 Moo. P. C.83, the landlord agreed to put the premises in repair and put up an additional building. Before this work was completed, the premises were partially burned. The landlord was held not entitled to specific performance because the work was not com- pleted, and this seems a sufficient reason. Huguenin v. Courtenay, 21 S. C.403,wasasuit by the seller for specific performance of an agreement for the sale of a lot of land on thu shore of an island, the fee of which was nominally in the State, the occupants having legally an estate from year to year and paying as rent one penny annually, but having for practical purposes the absolute ownership. Before the day appointed for transfer of title the sea washed away a portion of the lot. The court, though expressing assent to the doctrine of Paine v. Meller, 6 Yes. 349, gave judgment for the defendant, and distin- guished the case of a sale of a leasehold estate. On appeal the decision was affirmed. The decision was clearly right on any view, because the agreement was subject to a con- dition which so far as appeared had not been performed, and the appellate court made, this a secondary ground of decision.
