COBB, C. J.
The plaintiff below, on December 6, 1888, alleged that on the 18th day of February, 1886, in the county of Adams, this defendant and plaintiff entered into a written agreement and contract, of which the following is a true and correct copy:
“This writing witnesseth that Sylvester Renfrew and William M. Willis, of the county of Adams, state of Nebraska, hereby covenant and agree that if the said Willis shall well and truly make the payments as hereinafter written and set forth to be made by him, each and all, when the same shall become due and payable, and faithfully perform all his part as set forth in this writing, he shall be privileged to occupy and use all that part of sections 25-10-9 and 25-10-10 lying north of the south channel of the Platte river in Hall county, Nebraska, for the term of five years from and after the first day of March, 1886, and no longer. In consideration of which privilege and use, and as rental therefor, the said Willis hereby agrees to pay to the said Renfrew eight hundred dollars per annum, to be paid on or before the last day of December of each year, to-wit, eight hundred dollars on the 31st day of December, 1886, and eight hundred dollars on the 31st day of December of each year thereafter until and including the year 1890, and as early as the first day of March of each year to execute and deliver to the said Renfrew full and ample security for the payment of the rental of that current year, by mortgage or otherwise, that shall be satisfactory to the said Renfrew. Said Willis shall, as a further consideration for the use of said premises, deliver to the said Renfrew ten tons of good hay in stack, on the place, from each year's cutting, to be removed at the pleasure of said Renfrew. It is further agreed that the said Willis shall mow the grass on the land lying south of the pasture fence and west of the railroad each year for hay, wherever the willows do not render the mowing of the same impracticable, and properly stack and care for the hay thereon, and any willow patches not practicable for mowing may be plowed and cultivated to exterminate the willows, then seed to tame grass, and such willow patches not mown or plowed by said Willis during the two first years may be plowed and used by said Renfrew during the balance of this agreement without otherwise affecting or changing the terms or payments of rental. Said Willis shall not make any changes in the buildings or fences now on the place other than necessary repairs; nor shall he make any repairs or improvements on said premises at the expense of said Renfrew without his written consent thereto. It is especially agreed by the parties hereto that in case the said Willis shall fail to make any or either of the payments as above written when the same shall become due and payable, or to give the securities therefor, at the time and in the manner set forth, to the satisfaction of the said Renfrew, then and in that case the said Renfrew may at his option declare this agreement forfeited by the said Willis, and re-enter and take full possession of said premises with or without due process of law, and from and after the time of such failure on the part of said Willis his right to occupy and use the premises or any part thereof shall cease: provided, that the right to so declare forfeiture and re-enter and take possession shall in no wise bar the said Renfrew from recovering any unpaid rental that may have accrued at the time of regaining such possession, or any damage he may have sustained by reason of such failure on the part of the said Willis. Said Willis shall so watch and care for the premises, and the buildings, fences, wells, wind-mill, and tanks, etc., thereon, as to prevent unnecessary waste or decay. He shall not lease or let the premises, or any part thereof, to any person or persons whomsoever, without the written consent of the said Renfrew. He shall at the expiration of five years, as above written, vacate the premises to the said Renfrew in good condition and without notice. Witness our hands this 18th day of February, 1886. SYLVESTER RENFREW.W. M. WILLIS. CLARA B. PARR, Attest.”
(2) That under and by virtue of said agreement the plaintiff entered upon and took possession of the premises described in the same on the 1st day of March, 1886, and remained in possession of said premises for the period of two years from said 1st day of March, 1886.
(3) That during the said time the plaintiff paid and delivered to the said defendant the following sums of money and property, to-wit:
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¦During the year 1886 from the 1st day of March thereof up to and including ¦¦
¦the 4th day of July, 1887, hay and cash to the amount of ¦¦
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¦--The same being rent for said premises under the contract aforesaid.¦ ¦
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¦Octbr. 8, ¦Cash ¦300 00 ¦
¦1887. ¦ ¦ ¦
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¦March 8, ¦Cash ¦71 05 ¦
¦1888. ¦ ¦ ¦
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¦March 10, ¦Cash ¦175 00 ¦
¦1888. ¦ ¦ ¦
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¦March 10, ¦Note of Stewart & Benedict for $261, discounted 9 per ¦237 51 ¦
¦1888. ¦cent., balance ¦ ¦
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¦March 14, ¦Cash ¦1,519 ¦
¦1888. ¦ ¦66 ¦
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¦March 30, ¦Draft on Doniphan Bank ¦145 00 ¦
¦1888. ¦ ¦ ¦
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¦March 21, ¦Cash ¦50 00 ¦
¦1888. ¦ ¦ ¦
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¦April 7, ¦Cash ¦50 00 ¦
¦1888. ¦ ¦ ¦
+------------+--------------------------------------------------------+-------¦
¦April 7, ¦Work and labor in 1887-88 ¦24 00 ¦
¦1888. ¦ ¦ ¦
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¦Total ¦ ¦
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(4) Plaintiff further alleges that the money was paid to the defendant, and the labor was done and performed by the plaintiff for the defendant, at defendant's special instance and request, by virtue of the contract and agreement aforesaid.
(5) That of the money paid by the plaintiff to the defendant, the defendant is entitled to a credit of $1,600, and no more, for the rent of the premises for the period of two years beginning on March 1, 1886, and ending on March 1, 1888.
(6) That the balance of said money,...
