173 P. 672 | Or. | 1918
“It is true that we agreed to furnish a man and team to assist in clearing the land, and it is also true that we refused your request to furnish them upon demand,' but your agreement to clear was an independent covenant and because you have failed to perform your part of the agreement, we have the right to declare your lease perfected and evict you.”
This is the plain bald proposition and it is so inequitable as to at once suggest its fallacy. It must be borne in mind that this is not an action to recover rent, as in the cases cited by plaintiffs, but in substance
We are aware that this proposition is open to controversy. The line of demarcation between independent and dependent covenants is not always clearly defined. As said in Cyc., Yol. 24, p. 918:
“Covenants are to be construed as dependent or independent according to the intention of the parties and the good sense of the case. Technical words should give way to such intention. Some of the cases, however, lay down the rule that covenants in a lease will be considered and held as dependent conditions, to be performed by the respective parties, unless it fairly appears from the nature of the covenants they intended them to be independent.”
In Sigmund v. Newspaper Co., 82 Ill. App. 178, there was a covenant on the part of the landlord to decorate and repair the leased building. In an action for rent it was held that the covenant to pay rent and the covenant to decorate and repair were mutual and interdependent covenants. There was a like holding in Lunn v. Gage, 37 Ill. 20 (87 Am. Dec. 233). There is urgent reason for holding in cases like the present that the covenant to clear the land and the covenant of the lessor to furnish a man and team to assist in doing the work, are dependent covenants. It is frequently, indeed more frequent than otherwise, the case that a farm renter in this part of the country is a man of small means and not readily able to "purchase a team
Said Mr. Justice Thompson in Bank of Columbia v. Hagner, 1 Pet. (26 U. S.) 455, 464 (7 L. Ed. 219):
“Although many nice distinctions are to be found in the books upon the question, whether the covenants or promises of the respective parties to the contract, are to be considered independent or dependent, yet it is evident the inclination of the courts has strongly favored the latter construction as being obviously the most just.”
While the case there being discussed did not arise upon an alleged breach of the covenants in a lease, it is difficult to see why the same rule does not apply especially where the action, as in this case, is to enforce a forfeiture of a .lease and not an action to recover rent, or for damages for breach of covenant, in which latter ease the lessee, under our liberal system of pleading, might be permitted to counterclaim for a breach of the covenant to furnish assistance in clear
“And in addition to this rental for the second year of the lease, the lessee agrees to pick up, pile and clear the second premises hereinbefore mentioned, in the same manner as he is to clear and improve the other premises as hereinbefore mentioned, except that the lessors shall not be required to furnish any assistance to the lessee unless the lessee elects to do the work during the winter of 1916-17.”
It was evidently in the contemplation of the parties that the work upon the first tract should be completed during the winter of 1916-17, and if the lessee should choose to “make one bite of the cherry” and clean up both tracts during that year instead of waiting until the rental year of 1917-18, the lessors were to furnish assistance to complete both tasks. The clearing was a part of the rent to be paid for the first year, and where the lease fixes a yearly rent and makes no provision for its payment, it must be paid at the end of the year just the same as if the agreement was to pay in money or in a proportion of the crops. In the latter case the authorities hold that the rent is payable when the crop is harvested or within a reasonable time thereafter, and that the landlord may distrain for his share without waiting until the end of the rental year: Toler v.
We do not think the amendment to the answer allowed in the Circuit Court was so foreign to the defense allowed in the Justice’s Court as to substantially change the cause of defense tried there. Courts should be exceedingly liberal in allowing amendments which are obviously in furtherance of justice, and this should be especially the rule in regard to defendants, for while plaintiffs — if their pleadings are insufficient —may dismiss and begin again a defendant has no such opportunity.
For the error in the instruction above noted the judgment will be reversed and the cause remanded to the court below for a new trial.
Reversed and Remanded.