Pogue v. Ball

SMITH, J.

This is an appeal from an order denying the defendants’ motion for a new trial. There is also an appeal from the judgment, but this was not taken in time, and will not be considered.

The suit was brought for damages for breach of the contract contained in a lease from the plaintiff to the defend

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ants of date February 10, 1899. The lease was for a tract of six acres of land forming part of a larger tract, for the term ending August 1, 1902, which, it was contemplated by the parties, was to be used for nursery purposes. The terms ■ of the contract alleged to have been violated (changing the order for the sake of convenience) are as follows:

(1) “That at the time of the termination of this lease” the defendants were to leave the land “set in orchard form with navel orange trees at the usual distance apart,” which it appears would require one thousand trees; that in case of the necessity arising to supply any missing or defective trees this “shall be done by said parties of the second part at the earliest date practicable after the execution of these presents”; and “in case one thousand trees may not be left in orchard form upon said land, that said party of the first part shall be entitled to have of said nursery stock the difference between the number of trees so left in orchard form upon said land and said one thousand trees, to be dug and delivered without expense to parties of the second part any time after May 1, 1901, on request of party of the first part. ’ ’

(2) That the nursery trees within a radius of six feet from the trees to be left in orchard form shall be removed during the summer of 1900, and after May 1st.

On the latter point, the finding and judgment of the court was for the plaintiff and are not attacked by the appellants, which leaves us to consider only the first of the breaches assigned. On this the finding of the court is, “that it became necessary to supply about one hundred and fifty-six missing or defective trees on the parcel of land described in said contract, and that said defendants have failed and neglected to supply the same, or any part thereof, to plaintiff’s damage in the sum of $468.” Judgment was accordingly entered for the sum of $500, with costs.