OPINION
Niblack, J.
On the
18th day of August, 1884, Morgan Andis and Amos M. Personett
entered into the following agreement in writing:
"This
lease, made and entered into by and between Morgan Andis, of
the first part, and Amos M. Personett, of the second part
witnesseth that the said Morgan Andis has this day leased and
rented, and to farm let unto said Personett, the farm on
which the said Andis now resides, in Brandywine township,
Hancock county, Indiana, containing about one hundred and
fifty (150) acres. Said Personett is to have
the possession of said farm at once for the purpose of sowing
wheat on the same this fall, and is to have full possession
of all of said farm from the 25th day of December, 1884,
until the 25th day of December, 1885. The clover that is now
on said farm is not to be plowed up by said Personett, but is
to be fenced off by said Andis, in good order, so as the said
Personett can pasture the same next summer,
and said Andis is to raise and repair the culvert across the
pike near the grave-yard, so that stock can pass under the
same, back and forth to water. Said Andis is to deliver the
possession of said farm to said Personett on the 25th day of
December, 1884, with a dwelling-house, and the fencing on
said farm in good repair, and the same is to be kept in good
repair, and delivered up to said Andis in good repair at the
expiration of the said lease by the said Personett, natural
wear and tear excepted. Said Andis to repair the barn, to fix
the floor and wheat-bin and corn-crib in the same, and fix a
way to feed stock from the upper floor of said barn to the
lower floor of the same. Said Personett is to have the
stalk-field pasture on said farm in the fall of 1884, and
said Andis to have the said stalk-field pasture on said farm
in the fall of 1885. The said Personett is to have the right
to pasture the stubble-field on said farm in the fall of
1885, in a reasonable manner, until the first day of
September, 1885, that may be in clover, and the remainder, if
any, as long as he sees fit, and said Personett is to have
the right to use firewood, for his own use, as long as he
occupies said farm, as the tenant of said Andis, out of the
waste or dead timber not fit for saw or rail timber. Said
Personett is not to have the right to pasture the door-yard
or orchard on said farm. The said Personett agrees to pay
said Andis, as rent for said farm, the sum of five hundred
dollars, and to execute his note for said amount, due on the
25th day of December, 1885, bearing interest at eight per
cent. from the 25th day of December, 1884, with good and
approved freehold surety. Should said Personett fail or
refuse to perform the said contract in regard
to the execution of said note, he shall forfeit all of his
right to the possession of said farm."
On the
1st day of October, 1884, Personett filed his complaint in
the court below, founded upon the foregoing lease, in which
he averred that he had executed a note to Andis for the sum
of $ 500, with interest at the rate of eight per cent.,
conformably in all respects to his agreement to execute a
note in that sum, bearing date the 6th day of September,
1884, and procured one Daniel Snider to sign the same as
surety thereon; that said Snider was at the time, and has
since continued to be, the owner of real estate, in Hancock
and Madison counties, in this State, of the value of $
20,000, and free from every encumbrance whatever; that the
said Snider was worth, over and above all his indebtedness,
the sum of $ 20,000; that after said note was so executed he,
Personett, tendered the same to Andis, who refused to either
receive or accept such note, "without cause;" that
he, the said Personett, at the time of tendering said note,
and at divers times thereafter, demanded from the said Andis,
possession of so much of the farm as was necessary to enable
him to sow wheat, as was provided by the lease he might do in
the autumn of 1884, but that the said Andis had refused at
all times to permit him, the said Personett, to take
possession of, or to have access to any part of the farm, and
had absolutely refused to allow him to sow wheat thereon.
Upon these and other facts charged, both general and special
damages were demanded.
At the
succeeding October term of the court below, a demurrer to the
complaint was overruled, and a trial resulted in a verdict
and judgment for Personett, the plaintiff.
Error
is assigned...
