Tbe rights and liabilities of the parties to this action must be 'determined in accordance with their agreement, which is in writing, and not in accordance with the statute, C. S., 2352, or with the common law. The validity of the judgment in the action involves the construction of paragraph 4 of the agreement entered into by and between the parties on or about 1 May, 1929. This paragraph is as follows :
“4. It is further agreed that in the event the building hereinbefore referred to shall be substantially or totally destroyed by fire, then a just portion of the rent shall be paid, and this lease then terminate, provided, however, that if a fire occurs after the close of the tobacco season, then the party of the first part herein shall not be called upon to refund any part of the rents paid.”
The building referred to in this paragraph was a tobacco warehouse designed and used for the sale of tobacco during the tobacco selling season. The rent for the'premises for each year of the term of the lease was due and payable on 15 September, 1 October, 15 October and 1 November of said year. The courts will take judicial notice of the well known fact that the tobacco selling season of each year in Eastern North Carolina begins about 1 September and closes about 1 February of the following year, that the annual crop of tobacco is sold chiefly during the months of September, October and November, and that only a small portion of the crop is sold during the months of December and January. The notes executed by the plaintiffs and payable to the defendant matured during the season, the last note falling due on 1 November.
It was manifestly the intention of the parties to this agreement, as shown by the provisions of paragraph 4, construed in the light of all the provisions of said agreement, that if the warehouse located on the premises described in the agreement should be destroyed by fire before the notes executed by the parties of the second part in payment of the rent for the year in which the fire occurred, were due and paid, and before the close of the tobacco selling season for that year, then and in that event the parties of the second part should pay to the party of the first part only a just portion of the rent for which the notes were executed. There is no provision in the agreement for a refund by the party of the first part to the party of the second part of any sum in the event the warehouse was destroyed by fire, during the tobacco selling season of any year included in the term of the lease, and after the notes were due and paid. It is expressly provided that if a fire occurs after the close of the tobacco selling season of any year included in the terms of the lease, the party of the first part shall not be called upon to refund *420any part of the rent paid for the preceding year. This proviso does not enlarge the liability of the party of the first part, or confer upon the party of the second part a right to recover any part of the rent paid during the preceding tobacco selling season.
There is error in the judgment which is founded upon the court’s opinion that the agreement contemplated a rental by the month.
On the facts admitted in the pleadings, the plaintiffs are not entitled to recover of the defendant any sum as a refund for the rent paid for the year 1930. The defendant is entitled to recover of the plaintiffs the sum of $287.00, with interest from 30 December, 1930, and the costs of the action. The action is remanded to the Superior Court of Wayne County that judgment may be entered in accordance with this opinion. The judgment is
Reversed.