Heck v. Borda

Opinion by Mr. Justice Sterrett : This action of covenant by lessor against lessee, for damages by fire, is based on the two following covenants in the lease, viz.: 1. “Should this lease terminate from any cause the said party of the second part agrees to leave the property in as good condition as when put in blast, wear and tear excepted.” 2. “In case of stoppage the party of the second part agrees to furnish a watchman, or protect the property by insurance.” The lease under seal, dated January 17, 1882, was duly executed, acknowledged, and recorded. After describing the demised premises, consisting of about 15 acres of land on which [330] were erected a blast furnace and other buildings used in connection therewith, the lease provides as follows: “This lease or grant to continue as long as the said party of the first part receives a revenue of no less than $1,000 a year royalty on account of iron made, or on account of iron to be made; and the said party of the first part further agrees that he will at any time within three years of this date sell' and convey by good and sufficient warranty deeds all of the above-described property for the sum of twenty thousand dollars ($20,000) payable, etc. . . .; and the party of the first part further agrees that he will allow one half of the expense of putting the furnace in working condition ; provided, however, that his half shall not exceed $1,250.” In consideration thereof the lessee agrees to pay “50 cents per ton of 2,268 pounds for each and every ton he may make at said furnace. Payments to be made at the furnace office on or before the 15th day of each month.” “The amount to be expended in putting the furnace in working order (the half of which as hereinbefore stated is not to exceed -$1,250) is to be paid out of the first accruing rent.” “It is also expressly understood that in case the party of the second part fail to pay to the party of the first part a royalty of at least $1,000 per year, this lease shall at the option of the party of the first part become null and void.” If the lease gave defendant no greater interest in the premises than a mere tenancy at will, it must be conceded that the judgment of nonsuit was rightly entered; but, on the other hand, if it vested in-him at least a tenancy from year to year, as we think it did, the case should have been submitted to the jury on the evidence tending to prove the breaches of covenant declared on. It is unnecessary to refer to the evidence tending to sustain the breaches assigned. Suffice it to say, the testimony on that subject is quite sufficient to have warranted its submission to the jury. The provisions of the lease above quoted clearly show it was intended to create at least a tenancy from year to year. It is to continue as long as the royalty of $1,000 a year is paid. The express authority to terminate the lease in the event of nonpayment of the minimum annual royalty tends also to exclude the inference of power to terminate it at will. It cannot be an estate at will unless terminable at the will of either party. The provision of expending 25 per cent more than the first year’s mini [331] mum royalty in putting the furnace in working order also shows conclusively that the tenancy at will was not contemplated by the parties. The lease given in evidence should have been construed to be a lease from year to year, and the case should have been submitted to the jury on the evidence tending to prove breaches of covenant on the part of the lessee. Judgment reversed and a procedendo awarded.