Conolley v. Power

FINCH, P. J.

Plaintiff leased to “R. O. Payton, J. A. Payton, J. H. Payton and J. B. Payton, as co-partners doing business under the firm name and style of Payton Bros.,” for a term of three years from the first day of September, 1921, certain lands, livestock, and machinery. The terms of the lease material to the determination of this appeal are as follows:

“The lessor leases to the lessees cows and hogs on said premises and, as rental therefor, the lessees agree to pay to the lessor fifty per cent of the gross returns received from said cows and hogs. Settlement to be made on the first day of each month and a statement rendered showing the gross profits for the preceding month.

“The foundation herds are to be kept intact by the lessees and any loss from the foundation herds shall be replaced from the increase by animals to be selected by the lessor. . . .

“All of the natural increase, after making replacements to the foundation herds, shall be divided equally between the parties at the termination of the lease. . . .

“It is expressly understood, stipulated and agreed, that' all of the terms, promises, agreements and provisions of this lease are express conditions, and not mere covenants, and upon the breach or failure of the lessees to carry out any of the same, this lease shall terminate and expire at the option of the lessor, and all rights hereunder shall be forfeited, and the said lessees are to immediately deliver up peaceful possession to the lessor.

[73]

“Tim© and punctuality are material to, and are of the very essence of this agreement, and of every part or portion thereof, to which the element of time and punctuality are applicable."

The lessees went into- possession, but from the beginning they failed to carry out the terms of the lease in material respects, so that at all times thereafter the plaintiff could have exercised his option to terminate it. On the sixteenth day of December, 1922, the defendant, in his official capacity as sheriff, took possession of all the increase of the aforesaid livestock under a writ of attachment issued in an action against the lessees, prosecuted by one of their creditors. Prior to the levy of the writ of attachment, in a conversation between one of the lessees and the attorney for plaintiff, the other lessees not being present and it not appearing that such lessee was authorized to represent them in the matter, it was orally agreed “that the lease was to be canceled . . . without any foreclosure." This copartner testified: “There was nothing said about leaving the ranch at that time I don’t think, but we were discussing the terms of the lease, as to whether it was possible to go ahead with the terms of the lease. Q. You merely discussed possibilities as to whether you could farm it or couldn’t farm it? A. No, we decided we couldn’t, and it was impossible for us to go ahead with the lease. Q. You decided you would give up the lease ? A, I would peaceably deliver up the lease and not cause any expense. Q. 'Was any date set for-doing that. A. No, sir. Q. You heard nothing further of it until the Ingrams came? A. I received a letter from Mr. Conolley. I don’t know the date, asking possession of the ranch. I couldn’t tell you the date. Q. You delivered possession when the Ingrams came, did you? You let them take care of the premises and delivered it to them? A. Yes. Q. Now, did you have some kind of a settlement in February ? A. No, no settlement with the exception of the division of our personal property which was mixed up on the ranch." The personal property referred to in the last answer had been taken to the ranch by the lessees and was not any part of the increase of the livestock. The Ingrams referred to had been employed by the plaintiff to take possession of the property and they took possession of all thereof, except that under attachment, on the nineteenth day of December, 1922. Judg