130 HARVARD LAW REVIEW. taken by eminent domain before transfer of the property, becoming entitled thereby to damages for the taking.^ In the later of these two decisions the assessed damages were exactly one-third of the contract price.^ Samuel Willis ton. 1 Kuhn TJ. Freeman, 15 Kan. 423 ; Gammon v. Blaisdell, 45 Kan. 221. When Kuhn V. Freeman was decided, the eminent judge who wrote the opinion of the court in Whitaker v. Hawley, supra^ was a member of the court. 2 A lease of personal property might be thought to approach more closely to a con- tinuing contract, but such leases are rare. In the Southern States leases of slaves were formerly not unusual, and opinion was divided as to whether the loss in case of death fell upon the lessor or lessee. It was held that the lessee was excused from paying the stipu- lated hire in Collins v. Woodruff, 9 Ark. 463 ; Dudgeon v. Teass, 9 Mo. 857 ; Bacot v. Parnell, 2 Bailey, 424 ; Maldrow v. Wilmington, &c. R. R., J3 Rich. 69; Townsend v. Hill, 18 Tex. 422; George v. Elliott, 2 Hen. & Mun. 5. So emancipation by law was held to relieve the hirer from any obligation to pay rent thereafter. Wilkes v. Hughes, 37 Ga. 361 ; Mundy v. Robinson, 4 Bush, 342. On the other hand, by other courts it was held that the hirer was not relieved in case of the slave's death : Ricks's Adm, V' Dillahunty, 8 Port. 134 ; Lennard v. Boynton, 11 Ga. 109; Harrison v. Murrell, 5 T. B* Mon. 359 (see also Redding z/. Hall, i Bibb, 536; Griswold v. Taylor's Adm., i Met* (Ky.) 228; Hughes v. Todd, 2 Duv. 188); Harmon v. Fleming, 25 Miss. 135; Hicks V. Parham, 3 Hayw. (Tenn.) 224; Wharton v. Thompson, 9 Yerg. 45; Dickinson v. Cruise, i Head, 258 ; or emancipation. Coward v. Thompson, 4 Coldw. 442. In all these cases it is to be noticed there was not simply deterioration, but absolute destruction of the leased property. But slaves were an unusual kind of chattel, and it was held that the lease of a slave gave the lessee a property right, an estate in the slave so to speak, for the term of the lease: Smoot v. Fitzhugh, 9 Port. 72; Harmon v. Fleming, 25 Miss. 135; McGee z/. Currie,4 Tex. 217, 222. Specific performance was also granted of contracts relating to them. Murphy v. Clark, 9 Miss. 221 ; Williams v. Howard, 3 Murph. 74; Horry v. Glover, 2 Hill's Ch. 515; Henderson v. Vaulx, 10 Yerg. 30, yj. Compare Randolph v. Randolph, 6 Rand. J94. A lease of a furnished house includes personal as well as real property. In Whitaker V, Hawley, 25 Kan. 674, it was held that the absolute destruction of the personal prop- erty relieved the tenant from the payment of the rent reserved as a 1 ump sum for both per- sonalty and realty, but it was held otherwise in Bussman v. Ganster, 72 Pa. 285. See also Womack v. McQuarry, 28 Ind. 103; Clinton v. Hope Ins. Co., 45 N. Y. 454. A contract to assign the residue of a term in a furnished house was held excused by the destruction of the premises. Bacon v. Simpson, 3 M. & W. 78. In the civil law a hiring gives the hirer merely a contractual right, and wherever that system of law prevails, the hirer is excused not simply by the destruction, but also by the injury of the leased property, to an extent proportional to the injury. Hunter's Roman Law (2d ed.), 506, 508. Pothier, Contrat de Louage, sections 138-143 ; Code Civil Art. 1722, 1 Bell, Comm. (9th ed.) § 1208; Windscheid, Lehrb. des' Pandekt. § 400; Code of Louisiana, Art. 2667. The law in Newfoundland seems to be the same, by custom. Broom v. Preston, Sel. Cas. S. C. Mewf. 491 (referred to in Gates v. Green, 4 Paige, Ch. 355). A lease in the civil law is, therefore, analogous to a contract of sale. The civil- ians who support the doctrine of the Roman law as to risk in contracts of sale, have always been trpubled to reconcile the law as to leases. Hofmann seems clearly right in saying that reconciliation is impossible. Periculum beim Kaufe, 18-21.
