Clifton v. Hester

*527 Coók, J., delivered the opinion of the court. The appellant filed a bill in the chancery court of Monroe county against the administrator of the estate of J. T. Hester, deceased, seeking to recover the rent reserved in a certain lease contract. A demurrer to this bill was sustained, and thereupon complainant filed an amended bill averring that, for .the year 1923, he leased to the said J. T. Hester certain farm lands for a reserved rent of one-third of the corn and one-fourth of the cotton and sweet potatoes which might be raised thereon by the tenant; that the said J. T. Hester took possession of the houses and premises and occupied and used the same during the year 1923, but, contrary to the covenants of the lease, he did not cultivate any of the land, although there were twenty-five acres of arable land on the leased premises; that the reasonable value of complainant’s share of the crops if the land had been cultivated would have been seventy-five; that the rent reserved is capable of being fixed and made certain by ascertaining the amount of the crops that could have been reasonably *528 grown on the land if the same had been cultivated as required by the covenants of the lease, and by a calculation of the market value of these crops; and the prayer of the bill was for a decree for reasonable damages for the use and occupation of the land by the decedent. A statement of an account against the decedent’s estate for seventy-five, dollars as the reasonable value of complainant’s share of the crops that would have been grown on the land if the same had been cultivated, with the lease contract attached thereto, was duly probated and allowed, and was attached to the bill- of complaint as an exhibit thereto. A demurrer to this amended bill of complaint was sustained, the bill dismissed, and from this decree of the court below this appeal was prosecuted. This is not a suit for the reasonable value of the use and occupation of the premises, but is a suit upon a probated account and lease contract for the value of one-third of the corn and one-fourth of the cotton and potatoes that would have been raised on the demised premises if the same had been cultivated. It is not necessary to here decide what would be the measure of damages where one commits a total breach of his contract to- cultivate lands of another to a specific crop upon shares, or as to whether the value of the landlord’s share of a specific crop may be rendered sufficiently certain in such a case, since the contract here involved contemplates and requires that crops of corn, cotton, and potatoes shall be raised on the land, but contains no provision whatever as to the acreage that shall be planted to either crop. The bill charges that there are twenty-five acres of arable land on the demised premises, but under the contract the tenant might have planted and cultivated twenty-four acres in corn, one-half acre in cotton, and one-half acre in potatoes, or twenty-four acres in cotton, one-half acre in corn, and one-half acre in potatoes, or such other proportion as he might see fit. The contract contains no provision whatever as to the character of cultivation that should be given the crops, the acreage that should be planted, or the acreage that should be devoted to any one *529 crop. The amount of yield from any crop is dependent upon the character of the soil, the nature and character of cultivation, the diligence of the tenant, the ravages of insects, and other contingencies, and where ho crop is planted, it is at best very uncertain as to the amount of yield that would have resulted if the land had been cultivated, but where, as here, no crop was planted, and the tenant had the right to determine the amount of acreage that should be devoted to several crops, proof as to the value of the probable yield if the land had been planted and cultivated would be too speculative to support a decree for the value of the landlord’s share of such crops. The decree of the court below, sustaining the demurrer and dismissing the bill, will therefore be affirmed. Affirmed..