
    Argued 24 April;
    decided 12 May, 1900.
    SALZGEBER v. MICKEL.
    [60 Pac. 1009.]
    Landlord and Tenant — Pleading Eviction.
    1. A complaint in an action by a tenant against Ms landlord for being wrongfully evicted from rented lands, wMcli states that under the lease the landlord had a right to terminate the,occupation on notice whenever he desired to use the lands for some purpose other than that for which they had been rented; that the landlord gave such notice, and that the tenant peaceably surrendered possession in consequence thereof; that the said notice was given-in bad faith and for the purpose of evicting plaintiff, and that the landlord had continued to use the lands for the same purpose for which they had been rented, states a cause of action for wrongful eviction as against a motion for judgment on the pleadings at the trial.
    Eviction — Damages Recoverable Under General Allegation.
    2. Where an action is brought by a tenant against his former landlord for an eviction, based on the wrongful action and bad faith of the landlord, the natural and approximate damages resulting from the breach of the lease may be shown under an allegation of general damages.
    Breach oe Contract — Damages—When Action May be Brought.
    3. Where the breach of a lease is total, an action for both present and prospective damages may be maintained without waiting the expiration of the time required for the full performance of the contract.
    
      From Marion : Geo. H. Burnett, Judge.
    This is an action by John Salzgeber against N. Mickel and wife for damages for the wrongful eviction of plaintiff from certain leased premises to be used for the production of hops. The defendants, by a written agreement executed March 31, 1896, leased to plaintiff a hop field, situated upon their farm, for the term of five years, ending December 1, 1900. The agreement contains the following stipulation : ‘ ‘ First party is entitled to desist in farming the said hop field as a hop field, but if N. Mickel and wife, party of the first part, wishes to desist, are obliged to give notice to John Salzgeber, party of the second part, from the last day of picking till ten (10) days after the last day of picking each year, but are not allowed to rent said hop field as a hop field to any other party or parties, nor farm it himself as a hop field, during the above-specified years.” The action is based upon a breach of this stipulation, the averments touching which are substantially as follows : That on or about the first day of October, 1896, the defendants notified plaintiff, as by the terms of said agreement required, that they desired to desist and discontinue farming the premises as a hop field, and demanded and required plaintiff to quit and surrender up to them the said premises, and at the same time further notified the plaintiff that they thereby terminated said agreement and lease in pursuance of said stipulation; that plaintiff, relying upon and believing said notice to have been given in good faith, and believing that defendants desired to desist and discontinue farming said premises as a hop field, as represented by them in said notice, and as they had a right to do under the terms of the agreement, surrendered to the defendants, who then and there took, and ever since have retained, possession of the said premises, although plaintiff duly demanded a return thereof to him immediately upon discovering that they did not intend to discontinue farming the same as a hop field ; that said notice so given plaintiff by defendants was not given in good faith or with an honest intent; that said defendants did not intend to desist, and have not desisted or discontinued, farming said premises as a hop field, but simulated said purpose only, and gave said notice for the sole purpose of evicting and ousting the plaintiff, and repossessing themselves of said premises four years before the lease thereof to plaintiff would otherwise terminate. The issues having been made up, a jury was impaneled, and, when plaintiff endeavored to offer proof showing the breach of the contract in the particular alleged, the court refused to admit it, and gave judgment for defendants upon the pleadings, upon the ground that the complaint does not state facts sufficient to constitute a cause of action. From this judgment the plaintiff appeals.
    Reversed.
    For appellant there was a brief over the names of Arthur C. Emmons, John A. Carson, and Adolf Schütz, with an oral argument by Mr. Emmons.
    
    For respondents there was a brief over the name of Holmes & Kellogg, with an oral argument by Mr. William H. Holmes.
    
   Mr. Chief Justice Wolverton,

after stating the facts, delivered the opinion of the court.

The stipulation contains sufficient of the substance of the agreement, without further reference thereto, to indicate tlie purpose of the parties, viz., that, if the premises leased were to be utilized continuously for the production of hops, plaintiff should have the use thereof until the end of his term. But it was left optional with the lessors whether the premises should continue to be used for that specific purpose ; so a method was provided for terminating the lease, and for their re-entering or regaining possession in case they concluded that the hop culture should cease thereon. So long, however, as the premises were to be used for the culture of hops, the lessors were without authority to put an end to the lease, .or to dispossess the plaintiff, who, under such condition, was entitled to possession and use until the end of his term. Now, the effect of the allegations of the complaint is that the defendants wrongfully represented to plaintiff that they desired to discontinue the use of the premises for the culture of hops, when, in truth and in fact, they intended to continue using them for such purpose ; that their avowed desire to the contrary was not real, but simulated, and a mere pretense, made with a view of regaining possession of the premises and terminating the lease in violation of the stipulation ; that plaintiff, relying upon the supposed good faith of defendants’ representations, surrendered possession in obedience to their notification; and that defendants did not in fact discontinue the production of hops, but have since utilized the premises for that purpose. There is here a statement of a breach of the condition of the agreement upon the part of the defendants, because they have evicted the plaintiff, contrary to the letter, as well as the spirit, of the express stipulation. If it be said that the breach is not well assigned, it must be conceded that, at the worst, the complaint states a good cause imperfectly; and, judgment having been given upon the pleadings after the issues had been fully formulated, all intendments must be taken in favor of the sufficiency thereof.

The question is therefore resolved into whether damages may be predicated upon the breach assigned. If so, the complaint is sufficient. The rule clearly applicable here is stated by Mr. Sutherland as follows : “Where a lessor knows, or is chargeable with notice, of such defect of his title that he cannot assure a lessee quiet enjoyment for the term which he assumes to grant; where he refuses, in violation of his agreement, to give a lease, or possession pursuant thereto, having the ability to fulfill, as well as where he evicts his tenant, — he is chargeable with full damages for compensation:” 3 Sutherland, Dam. (2 ed.) 1973, 1974; Mr. Chief Justice Earl, in Mack v. Patchin, 42 N. Y. 167 (1 Am. Rep. 506), treats the rule as an exception, or, rather, as not falling within the general rule promulgated in such cases. The action was for a breach of the covenant for quiet enjoyment implied in a lease, where the eviction was occasioned through fault of the lessor. He says : “If the vendor is guilty of fraud, or can convey, but will not, either from perverseness or to secure a better bargain, or if he has covenanted to convey, when he knew he had no authority to contract to convey, or where it is in his power to remedy a defect in his title, and he refuses or neglects to do so, or when he refuses to incur expenses which would enable him to fulfill his contract, — in all these cases the vendor or lessor is liable to the vendee or lessee for the loss of the bargain, under rules analogous to those applied in the sales of personal property.” So it was held that, the lessee having been evicted by reason of the prior mortgage covering the premises upon which the lease was given, and the lessor having wrongfully given the lease, knowing the mortgage was there, and failing to protect the lease against the mortgage, the lessor was liable for damages under the rule thus indicated by the learned jurist. Other cases go further, and 'apply the rule that indemnity constitutes the proper measure of damages, whether a wrongful act or bad motives can be imputed to the lessor or not: Snodgrass v. Reynolds, 79 Ala. 452 (58 Am. Rep. 601). We need have but little concern, however, whether the rule is based upon the wrongful conduct and bad faith of the lessor, or not, as it is sufficient for this case to know it exists, when bad faith attends the transactions ; for the defendants herein are charged by the averments of the complaint with deceit and want of good faith in procuring the surrender and relinquishment of the leased premises by the plaintiff. The damages recoverable are such as are natural and approximate, and are ordinarily measured by the difference between the rent paid and the actual value of the premises for the unexpired term : 3 Sutherland, Dam. (2 ed.) 1974. In further support of these rules and principles, see Alexander v. Bishop, 59 Iowa, 572 (13 N. W. 714); Dodds v. Hakes, 114 N. Y. 260 (21 N. E. 398); Townsend v. Nickerson Wharf Co. 117 Mass. 501; Rhodes v. Baird, 16 Ohio St. 573 ; Greene v. Williams, 45 Ill. 206 ; Dobbins v. Duquid, 65 Ill. 464 ; Taylor v. Bradley, 39 N. Y. 129 (100 Am. Dec. 415); Conlon v. McGraw, 66 Mich. 194 (33 N. W. 388). Plaintiff has alleged generally that he is damaged by reason of the breach in the sum of $500. Under this allegation, he would be entitled to recover whatever sum he might be able to show that he was damaged under the rule. There is a further allegation of $200 damages for labor and money expended, etc. Of this we must not be understood to speak at the present time, because there was no question presented respecting it.

Again, it is contended that the action could not be maintained until the full term of the lease had expired, because the amount of damages is not otherwise ascertainable. But such is not the rule. In case of a contract extending through a considerable period of time, if the breach is total, a recovery may be had of all damages, both present and prospective, and it is not necessary to await the time for full performance. Actions may be instituted and sustained at once upon the breach: 8 Am. & Eng. Enc. Law (2 ed.), 682 ; Remelee v. Hall, 31 Vt. 582 (76 Am. Dec. 140); Hale v. Trout, 35 Cal. 229 ; American Mfg. Co. v. Klarquist, 47 Minn. 344 (50 N. W. 243); Taylor v. Bradley, 39 N. Y. 129 (100 Am. Dec. 415); Conlon v. McGraw, 66 Mich. 194 (33 N. W. 388). The acts of the defendants, as shown by the averments of the complaint, amount to a total breach of their stipulation, as they have put an end absolutely to the agreement under which the parties were acting; and, under the authorities above alluded to, the action was maintainable from the time the breach occurred. These considerations reverse the judgment of the court below, and the cause will be remanded for such further proceedings as may seem proper in the premises. Reversed.  