101 Kan. 130 | Kan. | 1917
W. A. and E. R. Amend, residents of Great Bend, were the owners'of 960 acres of land in Gray county. In February, 1915, they entered into a written agreement with T. M. Jinnings, providing that he was to occupy and farm it for three years, one-third of the crop (wheat) to go to the owners. The contract also provided for' his breaking out 500 acres of new land the first year and raising a wheat crop thereon for the benefit of the owners, to be paid in cash for his services in this connection. By September 28, 1915, Jinnings had broken the 500 acres of sod and plowed 400 acres of cultivated, land, but had not sowed any wheat. On that day he was arrested, charged with a felony. He was held in custody until the October term of the district court, when he was convicted and sentenced to serve six months in the county jail. He appears not to have attempted to make any arrangement for the carrying on of the work, and to have been out of funds and credit. He remained in jail until about March 1, 1916, when he was paroled. Within a day or two after the arrest the Amends took possession of the land, which they have ever since retained. Upon the parole of Jinnings they told him that they would not permit him to return to the premises. On April 11, 1916, he brought an action of forcible entry and detainer against them, joining as a defendant John, Ratzloff, to whom they had given a lease. By the consent of the parties the case was transferred to the district court under an agreement that all the matters in controversy should be determined in one action. A referee heard the evidence and made detailed findings covering all transactions connected with the land contract. Judgment was- rendered awarding the plaintiff possession of the land, and requiring him to pay $1859.10, the amount found due the Amends on an accounting. The defendants appeal.
The plaintiff invokes the rule that in the absence of an express provision on the subject in the lease a lessor can not terminate the tenancy on account of a breach of covenants by the lessee. (18 A. & E. Encycl. of L. 369; 24 Cyc. 1349; 24 Cyc.
“Where one of the parties to a contract, before the time for performance arrives, has placed himself, by his voluntary act or conduct, in such*134 a situation that he is unable to fulfill his part of the agreement, it maybe treated as an anticipatory breach of the. contract or as a case of impossibility of performance subsequently arising; and in either view, the other party to the contract may thereupon rescind it and recover whatever consideration he may have given under it, or treat it as abandoned, and sue at once for such damages as he may have sustained. The inability to perform need not relate to the whole and every part of the contract, but it must exist with reference to some substantial particular, going to the very essence of the contract and defeating its main purpose and object, or to a part so essential to the residue of the contract that it can not reasonably be supposed that the other party would have made the contract without it.” (1 Black on Rescission and Cancellation, § 210.)
The right of the plaintiff to occupy the land for three years was expressly granted in consideration of his personal occupancy and services. By fair implication it was conditioned upon his being able to comply with that requirement — at least upon his not voluntarily divesting himself of such ability. His enforced withdrawal from active life was not within the contemplation of the parties to the contract. There was practically a destruction of an important part of the subject matter of the contract. The fact that the defendants were willing to agree that the plaintiff should have the right to occupy the farm for three years, assuming that he was to remain a free agent, affords no presumption that they would have been willing to grant him that privilege if he was to be imprisoned for a considerable part of the time. No question of forfeiture, strictly so called, is involved. We think the defendants were entitled to rescind the contract by reason of the plaintiff having disabled himself from performing a material part of his agreement — a part going to the very foundation of the contract, without which it presumably would not have been entered into; that their conduct amounted to an enforcement of this right; that they should be allowed to retain possession of the land, and that the plaintiff should be compensated on an equitable basis for the services performed and expenditures incurred by him prior to his arrest.
The findings of fact made by the referee and approved by the court need not be disturbed. But as the accounting was made upon the theory that the plaintiff would be restored to possession a readjustment will be necessary.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith.