Brown v. Cairns

• Decision Date: 09 November 1901
• Docket Number: 12,373
• Parties: M. T. BROWN et al. v. ALEXANDER CAIRNS et al
• Court: Kansas Supreme Court

66 P. 639

63 Kan. 584

M. T. BROWN et al. v. ALEXANDER CAIRNS et al

No. 12,373

Supreme Court of Kansas

November 9, 1901

Decided July, 1901.

Error from Coffey district court; W. A. RANDOLPH, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LANDLORD AND TENANT -- Abandonment. Where a tenant before the expiration of the lease, abandons the leased premises without cause, the landlord may relet to another without creating a surrender by operation of law.

2. LANDLORD AND TENANT -- Effect of Breach by Lessee. Covenants in a lease providing for its termination upon failure of the lessee to comply with specified conditions are for the benefit of the lessor only, and the lessee cannot, by a breach of its covenants, abrogate the lease and thus secure advantage from his own default.

3. LANDLORD AND TENANT -- Petition in Attachment. In an action brought against a tenant by his landlord for rent before it was due, the petition contained allegations which would entitle plaintiff to an attachment, and the prayer asked for a writ of attachment against the property of the tenant. Held, that the petition stated a cause of action.

Hutchings & Keplinger, for plaintiffs in error.

James Redmond, for defendants in error.

SMITH J. JOHNSTON, GREENE, ELLIS, JJ., concurring.

OPINION

SMITH, J.:

This was an action brought by plaintiffs in error to recover from the defendants in error the sum of $ 1000 rent for the year 1897 on a large tract of land in Coffey county. The petition, with copy of the lease attached and made part of it, was filed January 16, 1897, and alleges that the rent will be due, $ 500 on the 1st day of June, and $ 500 on the 1st day of December, 1897. There is a further averment as follows:

"Defendants within the last thirty days have removed a part of their property, consisting of a large number of cattle, from the said leased premises. . . . And plaintiffs further say that the said defendants intend to remove the remainder of their property and all of the crops from the said leased premises."

The prayer of the petition asks for a writ of attachment against the property of the defendants, and for judgment against them for the rent aforesaid when, by the terms of the lease, it should become due. In a supplemental answer filed by the defendants below they allege that, after they had abandoned the premises and repudiated the lease, the plaintiffs took possession of the land and leased it to one Samuel Dryer for the term of one year from the 1st day of March, 1897, and said Dryer entered upon the lands and occupied and cultivated them as plaintiffs' tenant. To this answer the plaintiffs in error filed a reply, averring that defendants below had abandoned the leased premises and refused to care for or cultivate the same; that plaintiffs had taken possession to the end and for the purposes only of preserving the property from waste and destruction, and to render the loss or damage arising from breach of the conditions of the lease as small as practicable; that the lease to Dryer was made after the plaintiffs below had notified the defendants that they would not accept a surrender of the premises and release the latter from the payment of rent therefor as provided in the lease.

The district court rendered a judgment on the pleadings against the plaintiffs below, who are plaintiffs in error here. It is a matter of conjecture upon what specific ground the action of the trial court was founded, rendering it necessary to consider all of the several points discussed in the brief of counsel for defendants in error, upon any one of which the action of the court might have been based.

By the terms of the lease, the letting of the land was for ten years from the 1st day of March, 1895, the lessees agreeing to pay a cash rental each year of $ 1000 for the first five years and $ 1500 each year for the remaining time, the rent to be paid semiannually in two equal payments, upon the 1st days of June and December. The lease contains this provision:

"If the said parties of the second part (lessees), their executors or administrators, at any time during the term hereby granted, shall fail in any or either of the covenant conditions or promises in these presents contained, which on the behalf of said parties of the second part are or ought to be observed, performed, fulfilled, or kept, then this agreement shall terminate and be at an end."

The defendants in error could not, by a failure to pay the rent, bring the lease to an end. The provision that the agreement should terminate upon the failure of the lessees to perform those conditions of the lease which were obligatory to be carried out on their part is a covenant in favor of the lessors exclusively, and does not make the lease void except at their option. To hold otherwise would permit a lessee to take advantage of his own default. The law is well settled on this question. In Cochran v. Pew et al., Appellants, 159 Pa. 184, 187, 28 A. 219, it is said:

"Covenants for the lease to be void, or to cease and determine, etc., on failure by the lessee to comply with the conditions specified, do not make the lease void except at the option of the lessor, and that legal effect, no matter what form or cumulation of phrases be used, can only be changed by an express stipulation that the lease shall be voidable at the option of either party or of the lessee." (See, also, Edmonds et al. v. Mounsey, 15 Ind.App. 399, 44 N.E. 196; Brady v. Nagle et al., 29 S.W. 943; Wills v. Manufacturers' N. Gas Co., 130 Pa. 222, 18 A. 721, 5 L. R. A. 603.)

It has been held by this court that under executory contracts for the sale of land, containing conditions that...