Kreutz v. McKnight

The opinion of the court was delivered, by Woodward, C. J. If Kreutz had shown substantial performance of the conditions of the lease, or a bond fide attempt to perform them, we would hold the lessors to a very strict exercise of their right to “ dissolve, terminate and annul” the lease. We do not think there was the necessary evidence of their exercise of this right. The putting another tenant on the premises without demand on or notice to Kreutz, was not the way to enforce the forfeiture. But the infirmity of the plaintiff’s case is, that there was an utter failure to show performance or offer of performance of his covenants. He was bound to take and pay for 72,000 bushels of coal per annum; but after September 1861, only five months from the beginning of the term, he made no returns, and offered no payments or notes with security as the lease provided. His suit was brought 5th March 1864, and in all that interval, between September 1861 and March 1864, two years and a half, there were no returns by the plaintiff, such as the lease stipulated for, and no attempt to comply with his covenants. If Hartman had intruded into the possession, he ought to have sued him promptly, for, as it was a term of only four years from the 1st of April 1861, to suffer an intruder to hold possession two years and a half without question, was to abandon the term altogether, and to obviate the necessity for a demand of the rent and a formal declaration of forfeiture. It would be an intolerable hardship to landlords, if tenants once in possession could allow themselves to be ousted by intruders for more than half the term — neither tenant nor intruder rendering the stipulated rent. As the case was presented in the evidence, we think it was properly ruled in the court below, and the judgment is accordingly affirmed.