Pfitzer v. Candeias

FINCH, P. J.

Plaintiffs were given judgment, under the provisions of section 1174 of the Code of Civil Procedure, for the cancellation of their lease of certain premises to the defendant, on account of his breach of one of the covenants thereof, and for damages to the lands leased and those occasioned by the unlawful withholding thereof after the default of which complaint is made.

The defendant was in possession of the premises under a lease for the term of five years from the first day of January, 1918. A large part of the lands leased was in alfalfa.

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By the terms of the lease the defendant agreed “to

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keep all stock off the alfalfa land when the same is wet.” The lease further provided: “If default shall be made in any of the covenants herein contained, that it shall be lawful for the said parties of the first part to re-enter said premises, and to remove all persons therefrom.” From evidence in which there was a substantial conflict, the court found: “That said defendant . . . has failed and refused to keep his said stock off of said alfalfa land when the same was wet; that said defendant suffered and allowed his stock, consisting of dairy cattle in large numbers, to run upon the land seeded to alfalfa upon said premises while the same was wet; that on numerous occasions in the year 1920, prior to the filing of the complaint in said action and the service of the notice requiring possession as hereinafter found, said defendant suffered and allowed his said stock to run upon the land in alfalfa so leased to him while the said land was wet; that there was a good stand of alfalfa upon not less than forty-five acres thereof; that by reason of its being wet, cattle pasturing thereon, bogged into same, tracked it up and injured and destroyed to a great extent the alfalfa growing, thereon.” The lease provided that “in the event that any of the alfalfa is tramped out or damaged by stock, said second party agrees to reseed the same at his own cost and expense.”

Appellant contends that “the idea that a forfeiture was intended to result from the mere circumstance of stock going upon the alfalfa land when wet is negatived by the provision requiring the lessee to reseed such land.” It is a matter of common knowledge, however, that alfalfa may be “tramped out or damaged” by livestock when the land is not wet. Therefore the provision requiring reseeding can be given effect independent of its application to injuries of the character charged. Doubtless the lessors could have waived the forfeiture and required the lessee to reseed the land but they were not limited to the latter remedy. The lessee expressly covenanted “to keep all stock off of the alfalfa land when the same is wet” and that his breach of “any of the covenants” should work a forfeiture. Under the findings of the court, he willfully refused to comply with his agreement and the choice of remedy for the breach is not with him but with the lessors.