Buckner v. Warren

Smith, J. This action of unlawful detainer was begun on the twenty-second of February, 1882. The plaintiff alleged that he had leased his farm to the defendant for the year 1882 ; that the defendant agreed in writing to cultivate the land in a husband-like manner, and to deliver to the plaintiff one-third part of the crops to be raised thereon ; that the defendant, after obtaining possession of the premises, had notified the plaintiff that he would not cultivate the land, but intended to hold possession of the buildings without the payment of rent, or compliance with his contract ; and that the plaintiff had made demand, in writing, upon the defendant for the surrender of the premises. A writ of possession was issued at the commencement of the action, under which the plaintiff was put in possession. To this complaint a general demurrer was sustained. And the plaintiff declining to plead further, a jury was empaneled, who assessed the defendant’s damages, by reason of being turned out of possession, at $150, for which final judgment was rendered. Non-payiorfetWre oi lease-14 The non-payment of rent is no cause of forfeiture of a lease, unless it is so expressly provided. The tenant can retain possession to the end of his term, though it may morally certain that his landlord will never receive any compensation for the use of the premises demised. But the complaint alleges, and the demurrer admits, that the defendant has repudiated the obligations of his lease— that in words and by equivalent acts, he will not go forward with it. Notwithstanding the term may not have expired, yet it is possible the further performance of the contract by the .landlord may be excused by conduct on the part of the tenant wholly at variance with the spirit. “Whenever one party to a contract refuses to execute any substantial part of his agreement, he thereby gives to the other party the option to rescind the entire contract by offering to restore what he has received and replacing the parties” in statu quo. Webb v. Stone, 4 Foster (N. H.), 282 ; Bishop on Contracts, sec. 677; Chitty on Contracts, 11 Ed., 1091. This rule was applied in Miller v. Thompson, 22 Ark., 258, where Mr. Justice Fairchild observed: “The refusal of either party to abide by or perform his part of the contract, would justify the other party in treating it as at an end, and would entitle him to the rights that the law would have given him had there been no contract.” Possos-s i o n regained by certiorari. If the facts are as set out in the complaint, the defendant had himself abandoned the contract. This authorized the plaintiff to disaffirm it, and to regain possession of his land by this summary process. Reversed and remanded for further proceedings with directions to overrule the demurrer to the complaint.