
    Joseph Butler and Elisha Lane v. Jacob Baker.
    B. leased to B. & L. certain premises, for which they agreed to pay him, as rent, a portion of the crop and a certain number of bushels of grain, but no money value was fixed. They occupied the premises, but failed to pay the rent when it became due. Held :
    That the market value of the grain, etc., at the time it should have been delivered, could be recovered upon a common count for use and occupation.
    This is a petition in error to reverse the judgment of the District Court of Muskingum county.
    Baker, the plaintiff in the court of common pleas, declared inassumpsit.
    The declaration contained but one count — the common count for use and occupation.
    Plea, non-assumpsit.
    On the trial, Baker offered in evidence, in support of the declaration, an agreement in writing, signed by himself and Butler & Lane, whereby he leased to them a tract of land, two parcels of which were to be by them put in corn, and the residue in buckwheat, reserving in the agreement as rent, twenty bushels per acre of the corn to be grown upon one, and eighteen bushels per acre of the corn to be grown upon the other of the two parcels to be cultivated in corn; and two bushels out of every five of the buckwheat to be grown upon the remaining parcel ; which corn and buckwheat were, by the terms of the agreement, to be delivered on the premises, at the river, in due season.
    No money rent was reserved; nor was there specified in the contract any money value’ of the corn or buckwheat reserved as rent; nor any liquidated damages stipulated to be paid by the lessees, in the event of non-delivery. Butler & Lane objected to the admissibility of the agreement as evidence under the declaration. The court sustained the objection, excluding the agreement, and ordering a non-suit, and entered judgment accordingly. Baker excepted to this action of the court.
    The district court, on error, reversed the judgment of the common pleas. And to reverse this judgment of reversal is the object of the proceeding in this court.
    
      R. Stillwell, for plaintiff in error.
    
      Jacob Baker, in person.
   J. R. Swan, J.

We are of the opinion that the plaintiff was entitled to recover, under the count, the value of that portion of the crop and grain which the defendants were required to deliver: The value to be determined by the market price at the time of the breach of the contract.

Judgment of the district court affirmed.  