
    Walley vs. Radcliff.
    Where an agreement was entered into to demise a farm for one year, and then followed these words: “ further, the said party of the second part is to have the said farm from year to year as long as the said farm is to be let,” upon his paying to the party of the first part $145 annually, in advance, or giving ample security for its payment; and at the expiration of the year, the tenant was turned out of possession under the landlord and tenant act for holding over, and the landlord let the premises to a third person; it was held!, that the tenant was entitled to sustain an action for the breach of the covenant, and that the proceedings had against him for his removal from the farm were no bar to the action.
    Breach of covenant. On the 10th day of April, 1830, the defendant, by an instrument under seal, agreed to demise a farm to the plaintiff for the term of one year from that day; and further, that the plaintiff should have the farm from year to year as long as it was to be let, upon paying to the defendant $145 yearly, and every year, in advance, or securing him for the rent. The plaintiff avers, that in pursuance of the agreement, he entered and gave security for the first year’s rent, which was accepted; and that he offered to pay and give ^sufficient and responsible sucurity, as long as the farm was to be let, yet that the defendant removed him from and off the premises, and afterwards, on the 28th April, 1831, offered to let and did, let and hire out the farm contrary to the covenant, &c. The defendant pleaded non est factum, and specially, that on the 28th April, 1831, he caused the plaintiff to be removed by due process of law, under the landlord and tenant act for holding over after the expiration of his lease ; having, on the 19th April, presented his complaint to a proper officer, stating due notice to quit, and instituted the necessary proceedings to effect the removal of the plaintiff, which were completed on the 28th April, and the plaintiff put out of possession—setting forth the proceedings at large. The defendant then averred, that on the 29th April, 1831, he did let the farm in question to other persons, as it was lawful for him to do, and this, &c. wherefore, &c. The plaintiff replied, admitting all the facts contained in the plea, but for replication, saying that the farm was to be let before, at the time, and after the proceedings had for his removal, and that the defendant did not and would not suffer him to occupy and possess the farm from year to year as long as it was to be let; concluding to the country. To this replication the defendant demurred, and the plaintiff joined in demurrer.
    J. L’Amotjrieux, for the defendant,
    insisted that the adjudication under the landlord and tenant act put an end to the plaintiff’s interest in the premises, and was conclusive upon him until reversed. 1 Starkie’s Ev. 181, 190. 3 id. 800, 802. 4 Cowen, 559. 1 Johns. C. 492.
    J. M’Kown, for the plaintiff,
    answered that the plaintiff could not gainsay the proceedings under the act; the defendant had a right to terminate the lease, if put an end to for any purpose other than to let the farm to others. His intention was not traversable, and therefore no bar could be interposed to the order of removal; but when, after the removal, the fact was ascertained that the farm was to be let, and was in fact demised to others, the plaintiff’s cause of action accrued, to which the previous proceedings are no bar.
   *By the Court,

Nelson, J.

The proceedings and judgment before the officer, under the landlord and tenant act, I am of opinion, were not conclusive upon the plaintiff. By the terms of the lease, the defendant had a right to put an end to it at the expiration of the first year, as it was optional with him to let the same or not for any longer time. The institution of the proceedings to turn out the tenant, as well as the notice to quit under the statute, was sufficient evidence of an intention not to lease, and to authorize the proceedings. There could be no valid defence to them by the tenant, as the intent to lease the farm for a longer time was not a traversable fact, nor one upon which the question could be decided.

The only question in the case is, whether the provision in the lease, namely, “ that the party of the second part is to have the said farm from year to year as long as the said farm is to be let by the party of the first part,” has any legal or binding operation upon the lessor, the defendant. It undoubtedly may have enhanced the amount of the rent for the first year, and have operated as an inducement to take the lease, and thereby entered into the consideration of the covenant of the lessee, and should have been faithfully observed by the defendant. This is the plain sense and justice of the case.

The replication avers that the farm was to be let before, at the time, and after the proceedings instituted against the plaintiff, and that the defendant would not permit the plaintiff to occupy and possess it, thereby sustaining the breach as alleged in the declaration. If this issue could be sustained by the plaintiff, I perceive no reason against his recovery. It establishes a breach of a stipulation of the defendant, the meaning of which is clear, capable of being performed, and which has damnified the plaintiff. The lease was for one year and something more ; it was to continue from year to year, at the same rent, as long as the farm was to be let. The defendant had a right to terminate it at the end of the year, if it was no longer to be leased ; but it was a violation of the spirit and letter of the covenant to terminate it and lease the land to another. He had covenanted not to do so, for such is the legal effect of the lease. He had no right to put an end to it absolutely, because, so far as leasing the Tama to another was concerned, it was qualified and restrained. The radical error in the plea, is in assuming that because the defendant has the right t.o terminate the lease for certain purposes, he has a right to do so for any and all purposes, though he has covenanted expressly to the contrary.

If the plaintiff can shew on the trial that he was removed from the occupation of the premises for the purpose of leasing them to another person, he is entitled to recover. The proof necessary to establish the fact need not now he noticed. Putting an end to the lease under pretence that the farm was no longer to be let, and immediately afterward's leasing it to a third person, was a fraud upon the covenant, and a violation of its sense and meaning ; and though it might enable the defendant to remove the plaintiff, it should not protect him from answering in damages for a breach of the covenant.

Judgment for plaintiff on demurrer.  