
    DEPEW v. KETCHUM.
    
      New York Supreme Court, General Term, Fifth Departent;
    
    
      January, 1894.
    a. Lease with reservation of right to sell.] Under a stipulation in a lease reserving to the lessor the right to sell the premises during the term, and binding the lessee to surrender possession in case said sale.ismade, and the lessor “ to pay any damages that the party of the second part may sustain by reason of a sale,” the lessor’s obligation to pay damages upon making such sale is the same as if the right to damages arose from a breach of contract.
    
    2. Damages ; loss of profits.]. The measure of the lessee’s damages under such a stipulation is the value of the term surrendered ; and the value of the term in the case of a farm depends upon the capacity to yield a profit to the man who works it under such a contract as that which the plaintiff held.
    3. The same.] Where the contract provided for the plaintiff’s working on shares a farm of the defendants for a term of five years, he to receive damages if lessors exercised reserved right to sell meanwhile, and such sale was made before expiration of the first year of the term and possession surrendered at the end of that first year,—held, that the jury might consider the profits of the year during which plaintiff had the benefit of the contract, not as the measure of the profits which might have been realized in each succeeding year, but as facts which might aid them in estimating the value of the contract one year with another.
    Appeal by defendant from a judgment entered on a verdict.
    Romane Depew sued Celina B., Anna M., and Caroline E. Ketchum, alleging that in January, 1891, the defendants leased the plaintiffs their “home farm,” consisting of about 234 acres of land, for a term of five years from April 1st., to be occupied by plaintiff and worked by him upon shares. The lease contained provisions on the usual subjects of the expense of furnishing seeds, division of produce, payment of taxes, the furnishing of stock and the number of animals to be kept, mending the fences, and the like ; and it further contained this provision:
    “ The parties of the first part reserve the right to sell this farm at any time during said term, and the party of the second part agrees to surrender possession of the same on the first day of April of any year during said term, in case said sale is made, and the parties of the first part hereby agree to pay any damages that the party of the second part may sustain by reason of a sale, said damage to be determined, if the parties cannot agree, by each, party selecting a man who shall assess the damages.”
    Plaintiff took possession about April I, 1891, and in February, 1892, defendants gave plaintiff notice that they had sold the premises and requested him to surrender possession on April 1, 1892, which he did. Plaintiff served a. bill of particulars of the damages sustained by reason of being deprived of the unexpired portion of the contract set forth in the complaint, describing it as “ being the net profit to be made therefrom, to wit: Four years, commencing April 1, 1892, at an average of $750.00 per year— $3,000.00. Said sum of $3,000.00 being the value of said contract to plaintiff at the date of its interruption by-defendants, April 1, 1892.”
    On the trial before Mr. Justice ADAMS and a jury, plaintiff proved a contract that he had made with a milkman to take from plaintiff from April 1st at least two hundred quarts a day. He also proved the amount,, uses and value of - the timber and other produce of the farm during the year of his possession- The suitableness-of the farm for grazing and grain raising was also shown, and the number of cows it could keep, and the number of acres that could be kept under the plough, at the same time.-
    Defendants adduced evidence, which they relied on, to show that the lease was not of value to the plaintiff because of mismanagement of the farm on his part, and. failure to make any profits.
    The judge in his instructions to the jury, said, among other things:
    He [plaintiff as a witness in his own behalf] says that, with proper management, he was able to earn the sum of about $1,000 a year for his own use. From that sum should be deducted, probably, the- value of his own services. This evidence has been permitted, not for the ■purpose of establishing the actual value of this lease, because it does not have that effect. As practical farmers, you will understand, without suggestion from the court, that it by no means follows, because in the year 1891 the plaintiff was able to net himself the sum of §991, that he would be able to realize the same amount for any ■other year of the term. It might be that he would have realized more. It is quite possible that he would have realized less ; but you have the fact that he realized this amount, according to his story, for the year 1891. You have had some evidence as to the condition of the farm, and of the season, and this evidence, all taken together, will enable you to determine what would be the value of the lease for the four years which were to follow. It will, perhaps, in addition to your actual experience in such matters, enable you to say how much, under ordinary circumstances, the plaintiff would have been able to earn for himself, by the use of the farm during the unexpired years of his lease. This is only an item of evidence from which you may infer what the value of the lease is.....
    “ If you find that the plaintiff was deprived, by this sale of the farm, of something of value to himself, you will determine what that value was, and what it would be likely to be for the remaining years of the lease, and you will award to the plaintiff such damages as will fairly represent the net value of the farm to him. If you find that the farm was of no value to him, and he has suffered no damage, your verdict will be for the defendants.”
    
      Edwin Hicks (William T. Morris, attorney), for the defendants, appellants.
    I. The plaintiff did not make any proof on which he was legally entitled to recover, and the defendants’ motion for a non-suit should have been granted. 1. The action was brought on the contract. There was no breach of the agreement in a technical sense. 2. Whatever may be the apparent difficulty in establishing a proper measure of damages in such a peculiar case, the measure adopted was erroneous., (a) The parties, contracted in anticipation of the right to terminate the occupancy of the farm on the first day of any April succeeding the commencement of the term. If notice was given in proper time the term ended, and all further rights-were terminated, and the damages that were to be assessed were such as should be certain and unequivocal, and attendant upon the election to terminate the agreement. 3. The rule adopted at the trial would produce most inequitable results and such as could not have been contemplated by the parties, {a) The contract, though nominally, would not in fact be either terminated or suspended. The plaintiff, although he had contracted in anticipation of a termination of the agreement on April 1st, yet by the measure of damages adopted, he is permitted to enjoy now the same results that he contracted to have only at the end of five years, and that, too, without any certainty in regard to the risks incident to future fluctuations of the markets, failure of crops, unfavorable seasons, and many other contingent circumstances that must necessarily enter into an enterprise to be continued through a series of years. (b) The danger of such a rule is illustrated in this case, if the plaintiff has the right to recover for the four .years balance of the term upon the alleged results of 1891. 4. If the plaintiff seeks to recover for the full term, he should be compelled to prove all the elements-necessary to show his real damage. (a) He was engaged in farming at the time of. the trial; there has been no loss-of time or opportunity; the plaintiff should be required to show what his actual loss is; if he has been engaged in the same kind of employment, the burden should be on him to' show how much less, if anything, he is receiving by reason of leaving the Ketchum farm. (6) A different rule should obtain in this case from that applied in a case of a willful breach of the contract. Both parties were acting in good faith, and according to their covenants-(Bush v. Cole, 28 N. Y. 261; Peters v, McKeon, 4 Denio, 546). (c) But in this case the rule is carried to the extreme of giving to the plaintiff the right to recover for the prospective and speculative profits of four years to come. He is only entitled to actual damages (Griffin v. Colver, 16 N. Y. 489). Justice Story in the case of the Schooner Lively, 1 Gallis. 315; Giles v. O’Toole, 4 Barb. 261; Milton v. Hudson River Steamboat Co., 37 N. Y. 210, 214; Hamilton v. McPherson, 28 N. Y. 72, 76-7; Krom v. Levy, 48 N. Y. 679; Masterson v. Mayor, etc., of Brooklyn, 7 Hill. 61, 71; Freeman v. Clute, 3 Barb. 424, 427; Taylor v. Bradley, 39 N. Y. 129; approved in Bernstein v. Meech, 130 N. Y. 354; Dodds v. Hakes, 114 N. Y. 260; Engelsdorf v. Sire, 64 Hun, 209.
    II. The court erred in admitting the evidence of the plaintiff in regard to the milk contract with Sprague. It was a collateral contract, and was not contemplated in the agreement on which the action was brought. •
    
      1st. As to a conversation with Carrie Ketchum, in the absence of both of the other defendants, which was objected to, the objection was overruled and the testimony was allowed.
    
      2d. As to the milk which was claimed as a source of profit under the contract, and the loss of this collateral contract as an element of damages in the breach of the agreement on which the action was brought (folios 93, 96, 105) . (b) There was no such privity between these defendants as that a contract subsidiary to the one on which the action was brought, made with one (folio 91) of the defendants, would bind the other two, and the conversation with Carrie Ketchum (folio 91, 92) should have been excluded, (c) So the testimony of Sprague (folio 106) should have been excluded upon the same ground - that it was testimony tending to enhance the defendants’ damages from facts growing out of an agreement collateral to the one on which the action was brought, (d) At folio 179 Warner Smith was asked : “ What in your judgment is a fair estim'ate of the number of cows kept •for milking purposes that could be sustained throughout the year upon the Ketchum farm ?” This question was ■objected to. The objection was overruled, and witness answered : “ I think it would carry twenty-five cows. On the basis of keeping twenty-five cows, it would to some extent be still practical to raise grain and other crops.” The witness was also asked : “ To what extent, in your judgment—how many acres, for instance, could be kept under the plow?” The question was objected to and an exception was allowed. The witness answered: ■“ There could be sixty acres under the plow all the time and still keep twenty-five cows ” (folio 183-184). The conversion of the farm “ let to be worked on shares ” into a dairy farm did not enter into the contemplation of the parties at the time of making the contract, and therefore the loss of the milk contract was not an element of damages the defendant agreed to pay.
    
      C. W. Kimball (W. D. Dwelle, attorney), for plaintiff, respondent,
    cited Taylor v. Bradley, 39 N. Y. 129; Wakeman v. Wheeler & Wilson M’f’g Co., 101 Id. 205; Bagley v. Smith, 10 Id. 489; Dart v. Laimbeer, 107 Id. 66 4.
    
      
      See note at end of the next case.
    
   Dwight, P. J.

The plaintiff took the farm of the defendants to work on shares for a term of five years from April 1, 1891. The contract was in writing and contained the following provision: “ The parties of the first part reserve the right to sell this farm at any time during said term, and the party of the second part agrees to surrender possession of the same on April 1st, in any year of said term, in case said sale is made, and the parties of the first -part hereby agree to pay any damages that the party of the second part may sustain by reason of a sale, said damage to be determined, if the parties cannot agree, by each party selecting a man who shall assess the damages.”

Under the right thus reserved the defendants made a sale of the farm during the first year of the term, and the plaintiff, in performance of the same provision of the contract on his part, surrendered the possession on April I, 1892. Shortly afterwards he called upon the defendants to select a person on their part to act as appraiser of his ■damages, and, upon their declining to do so, he brought this action.

The action was for the value of that portion of the term which was surrendered by the plaintiff ; and this, we have no doubt, he was entitled to recover under the terms o’f his contract. The defendants’ right to sell the farm during the term is reserved on the condition that they pay the plaintiff his damages caused by such sale; and the plaintiff’s agreement to surrender the possession is on the ■condition that he be paid such damages. The defendants’ obligation, under the contract, to pay damages, is as binding as if it arose from a violation of the contract on their part.

The only question in the case is, therefore, what are the •damages to be paid, how ascertained and how measured. The contract says : “ Any damages that the party of the second party may sustain by reason of a sale.” That means any damages directly or proximately consequent upon, or resulting from a sale. And that the loss of his term, of the rights and privileges which he would otherwise have enjoyed during the term, is to be, mainly, the basis of such damages, cannot well be doubted. And what ■are those rights and privileges ? Clearly, among others, the right and privilege to work the farm for four years more, and to make out of it all the gain and profit which it was capable of affording. The measure of the plaintiff’s damages, then, is the value of the term surrendered, and the value of the term depends upon the capacity of the farm to yield a profit to the man who works it under the contract which the plaintiff held in this case.

Granting, what we have assumed, that the liability of the defendants is the same under a contract by which they stipulated to pay damages in case of a sale, as it would have been had they made a sale in violation of the contract, then the case of Taylor v. Bradley (39 N. Y. 129) is-authority for the plaintiff’s contention upon nearly every question arising in this case. And its doctrine is, in great' measure, reaffirmed in the case of Wakeman v. Wheeler & W. S. M. Co. (101 N. Y. 205). Both of these were cases of damages resulting to the plaintiff from a breach of the contract. In the former of them the contract was of the same character as in this case, viz., the letting of a farm to-work on shares, and the court held, in an elaborate opinion by WOODRUFF, J., that the plaintiff was entitled to recover as damages the value of his contract, i. e., what such "a privilege of occupying and working the farm was worth, subject to the conditions of the agreement, and under all the contingencies which were liable to affect the result. “ His damages are what he lost by being deprived of his chance of profit.” Also, that such damages might be recovered immediately upon the refusal of the defendant to perform the agreement; and in the case of Wakeman v„ The Wheeler & W. Sewing Machine Company the same rule was applied to the estimate of damages for the breach of a contract, to give the plaintiff the exclusive privilege to sell machines in certain territory, and to furnish him the machines for such sales as he should make therein. Both of these cases are very instructive in respect to the limitations to be put upon the rule that speculative and uncertain damages cannot be recovered ; and, at least in the latter of them, the admission of evidence was approved which showed something of the extent and -profit of the plaintiff’s business so far as he was enabled to prosecute it, as tending to show what it might have been in case of full performance of the contract on the part of the defendant,, and that the case was not one for expert or opinion evidence as to what machines might have been sold and what profits made. The rule of the latter case as to the allowanee of prospective profits and the mode of estimating them, was adopted in Dart v. Laimbeer (107 N. Y. 664).

This case was, we think, submitted to the jury in a charge very carefully in accord with the principles established by the cases above cited. The jury was instructed that the profits of the year during which the plaintiff had the benefit of his contract were not to be taken as the measure of the profits which might have been realized in the four succeeding years, but as facts which might aid the jury in estimating the value of the contract one year with another ; and it would seem that under the careful instructions of the court the jury did not go very far astray into the region of speculation and conjecture. Their verdict was for $1,500, which fixes the value of the plaintiff’s contract at $375 a year, not an extravagant profit to be realized over and above the expenditure of labor and care, enterprise and responsibility involved in the management of a farm of 234 acres of fertile and highly improved land.

We find no error in the case which should vitiate this verdict.

The judgment and order appealed from should be affirmed.

Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.

note on leases and other contracts for farming on shares.

The lease in this case, which will be suggestive as a precedent, •was as follows:

“ This indenture [etc., designating the parties and their residences in the ustmlform \:

Witnesseth, that the said parties of the first part hereby agree to and with the said party of the second part to let, and by these presents do let, unto the party of the second part, to be worked upon shares, their home-farm, so called, situated in the said town, consisting of about two hundred and thirty-four acres of land, for and during the term of five years from April i, 1891, which term will end March 31, 1896. In consideration whereof the said party of the second part hereby agrees to and with the said party of the first part to occupy, till and work upon shares the said farm during the term aforesaid, in a good, workman-like manner [see,Young v. Gay, 41 La. Am. 758; s. c., 6 So. Rep, 608; Shaw v. Mager, 95 Cal. 301; s. c., 30 Pac. Rep. 541], and he further agrees that he will not commit any waste or damage or suffer any to be done; that he will furnish one-half of all the seed, including grass and clover seed, to be sown on said premises during said time, and the parties of the first part agree to furnish the other one-half. The. party of the second part is to do all the work on said farm and market all the crops, and divide the proceeds derived therefrom equally between the parties of the first part and himself; and in case the parties of the first part should not be willing to market their one-half, after suitable consultation by the party of the second part with them, the party of the second part has the right to sell his one-half and to put the share of the parties of the first part in store, or leave the same in the bins. The parties of the first part are to pay the County and State taxes during said term, and the party of the second part is to pay the road and school taxes, but said school taxes are not to mean any extra taxes for buildings, etc. Each party is to furnish one-half of all stock to be kept on said farm during said term, which, with the increase there■of, are to be owned in common, except that the party of the second part has the right to keep two cows and such a number of horses .as may be necessary to properly work said farm, and the pasture, hay and straw necessary for the keep of said two. cows and the horses comes from undivided pasture, hay and straw, but • whatever grain he shall feed shall be from his own share of the same. The party of the second part shall keep the fences on said farm in good repair, and whatever new fence that may be necessary he shall build the same, but the materials therefor shall be furnished by the parties of the first part, and whatever new posts he may need, he shall cut from the logs furnished by the parties of the first part. The party of the second part has the privilege during the term of ■cutting and marketing seventy-five cords of wood each year, one-half of which shall belong to each party. The party of the second part has the right to cut sufficient fire-wood for his family use during said term. The wood to be cut upon shares shall be cut from the north side of the woods, but in no event shall there be any cut south of the lane. Each party is to pay for one-half of all .fertilizers to be used on said farm during said term, except that the parties of the first part shall pay for all the plaster used, and the party of the second part shall draw and sow the same. Each party shall have sufficient fruit for family use, and-the party of the second part shall pick, harvest, and market the balance, and divide the proceeds equally between the parties of the first part and himself. The wheat now on the ground shall be cut and harvested by the party of the second part, and he shall have one-half of the proceeds of the same, and the fall before the expiration of this contract the party of the second part shall sow and leave upon the farm for the use of the parties of the first part twenty acres, which is about the number of acres of wheat now on the ground. All fowls on the place are to be owned in common, and the proceeds are to be equally divided, and they are to be fed from undivided grain. The parties of the first part reserve the right to sell this farm at any time during said term, and the party of the second part agrees to-surrender possession of the same on April ist of any year during said term, in case said sale is made, and the parties of the first part hereby agree to pay any damages that the party of the second part may sustain by reason of a sale, said damage to be determined, if the parties cannot agree, by each party selecting a man who shall assess the damages. The parties of the first part reserve one or two rooms in the house for storage purposes, and a room in the horse barn ; the rooms in the house to be agreed upon hereafter. It is further agreed that the parties of the first part shall leave sufficient hay and straw to carry the stock until pasture, and the party of the second part is to leave the same amount at the expiration of this lease.

[Signatures.]

The following cases on contracts of this nature will be useful to the practitioner : •

1. As to the general nature of the contract, see Loomis v. O’Neal, 73 Mich. 582; s. c., 41 N. W. Rep. 701; Jones v. Durrer, 96 Cal. 95; s. c., 30 Pac. Rep. 1027; De Vaughn v. Howell, 82 Ga. 336; s. c., 9 S. E. Rep. 173; Almand v. Scott, 80 Ga. 95; s. c., 4 S. E. Rep. 892; Perry v. Beaupré, 6 Dak. 49; s. c., 50 N. W. Rep. 400; Raymond v. Krauskopf (Iowa), 54 N. W. Rep. 432; Meacham v. Herndon, 2 Pick. (Tenn.) 366; s. c., 6 S. W. Rep. 741; Reynolds v. Reynolds, 48 Hun, 142; Vaughn v. De Wandler, 63 How. Pr. 378; Schroeppel v. Dingman, 17 Weekly Dig. 257; Gilmore v. Ontario Iron Co., 22 Hun, 391 ; Roberts v. Cone, 3 Alb. L.J. 151; Andrew v. Newcomb, 32 N. Y. 417; Taylor v. Bradley, 4 Abb. Ct. App. Dec. 363; Wilber v. Sisson, 53 Barb. 258; Tanner v. Hills, 48 N. Y. 662; rev’g, 44 Barb. 428; Bradish v. Schenck, 8 Johns. 151; People v. Smith, 3 How. Pr. 226; De Mott v. Hagerman, 8 Cow. 220; Caswell v. Districh, 15 Wend. 379; Wright v. Mosher, 16 How, Pr. 454; Putnam v. Wise, 1 Hill, 234; Dinehart v. Wilson, 15 Barb. 595; Harrower v. Heath, 19 Barb. 331; Coe v. Hobby, 72 N. Y. 141; Unglish v. Marvin, 128 N. Y. 380; Coudert v. Cohn, 118 N. Y. 309; Talamo v. Spitzmiller, 120 N. Y. 37; Harft v. Tonnelli, 30 State Rep. 859; Woodward v. Conder, 33 Mo. App. 147; Hammock v. Creekmore, 48 Ark. 265; s. c., 3 S. W. Rep. 180; Parkes v. Webb, 48 Ark. 293; s. c., 3 S. W. Rep. 521; McElmurray v. Furner, 86 Ga. 215; Kyte v. Keller, 76 Iowa, 34; s. c., 39 N. W. Rep. 928; Tautlinger v. Sullivan, 80 Iowa, 218; s. c., 45 N. W. Rep. 765; Lawrence v. Weeks, 107 N. C. 119; Smith v. Schultz, 89 Cal. 526; s. c., 26 Pac. Rep. 1087; Bryant v. Pugh, 86 Ga. 525; s. c., 12 5. E. Rep. 927; McLaughlin v. Kennedy, 49 N. J. L. 519; s. c., 10 Atl. Rep. 391.

2. As to lease of land and chattels, see Zule v. Zule, 24 Wend. 76.

3. As to house and buildings, see Hanaw v. Bailey, 83 Mich. 24; s. c., 46 N. W. Rep. 1039; Hay v. Cumberland, 25 Barb. 594; Fort v. Brown, 46 Barb. 366; Doyle v. Gibbs, 6 Lans. 180; Kerrains v. People, 60 N. Y. 221; s. c., 19 Am. Rep. 158; rev’g on another point, 1 Supm. Ct. 333; Hoffman v. Hoffman, 44 State Rep. 660; s. c., 18 N. Y. Supp. 387; McNutt v. Shafer, 34 State Rep. 661.

4. As to qtiarry, clay-bed, etc., see Baker v. Hart, 52 Hun, 363; s. c., 5 N. Y. Supp. 345; Freer v. Stotenfur, 2 Abb. Ct. App. Dec. 189; rev’g 36 Barb. 641; Smith v. Palmer, 13 Weekly Dig. 201.

5. As to the products in general, see Burdick v. Washburn, 53 Barb. 397; s. c., 36 How. Pr. 468; Hobbs v. Wetherwax, 38 How. Pr. 385; Brooks v. Galster, 51 Barb. 196; Van Hoozer v. Cory, 34 Barb. 9; McCombs v. Becker, 3 Hun, 342; s. c., 5 Supm. Ct. (T. & C.) 550; Hawkins v. Giles, 45 Id. 318; Betsinger v. Schuyler, 46 Id. 349; Clarke v. Quinn, 21 Weekly Dig. 110; Welton v. Holmes, 6 State Rep. 546; Briggs v. Austin, 29 State Rep. 245; s. c. 8 N. Y. Supp. 786, Harder v. Plass, 57 Hun, 540; Briggs v. Austin, 129 N. Y. 208; s. c., 41 State Rep. 378; Colville v. Miles, 127 N. Y. 159; s. c., 38 State Rep. 132.

6. As to firewood, see Verplanck v. Wright, 23 Wend. 506; Bleecker v. Smith, 13 Id. 530.

7. As to covenant to farm, etc., see Young v. Gay, 41 La. Am. 758; s. c., 6 So. Rep. 608; Shaw v. Mayer, 95 Cal. 301; s. c., 30 Pac. Rep. 541; Scott v. Haverstraw, etc., Co., 135 N. Y. 141; s. c. below, 42 State Rep. 804; McCulloch v. Dobson, 133 N. Y. 114.

8. As to title to the growing crops, see Wadley v. Williams, 75 Ga. 272; Connell v. Richmond, 55 Conn. 401; Adams v. State, 87 Ala. 89; s. c., 6 So. Rep. 270; Rich v. Hobson (N. C.), 16 S. E. Rep. 931; Riddle v. Hodge, 83 Ga. 173; Pelton v. Draper, 61 Vt. 364; s. c., 17 Atl. Rep. 494; Farnum v. Hefner, 79 Cal. 575; s. c., 21 Pac. Rep. 955; Daniel v. Harris, 84 Ga. 479; s. c., 10 S. E. Rep. 1013; Stickney v. Stickney, 77 Iowa, 699; s. c., 42 N. W. Rep. 518; Culverhouse v. Worts, 32 Mo. App. 419; Hopper v. Haines, 71 Md. 64; s. c., 18 Atl. Rep. 29; 20 Atl. Rep. 159; Humes v. Dottermus (Pa.), 13 Atl. Rep. 78.

9. As to delivery, see Singleton v. Clack, 79 Ga. 523; Durdin v. Hill, 75 Id. 228; Smith v. Tindall, 107 N. C. 88; s. c., 12 S. E. Rep. 121; Wood v. Noack (Wis.), 54 N. W. Rep. 785; Rawlins v. Bush (1888), 80 Ga. 588; s. c., 5 S. E. Rep. 634,

10. As to title to mature crop, see Nuernberger v. Von Der Heidt, 39 Ill. App. 404; Constantine v. Wake, 1 Sweeny, 239; Jencks v. Smith, 1 N. Y. (Comst.) 90; Harrower v. Heath, 19 Barb. 331; Borell v. Newell, 3 Daly, 233; Gregg v. Boyd, 69 Hun, 588.

11. As to lien, see Wisner v. Ocumpaugh, 71 N. Y. 113; Hess v. Sprague, 13 Weekly Dig. 164; Barber v. Marble, 2 Supm. Ct. (T. & C.) 114; McCaffrey v. Woodin, 65 N. Y. 459; s. c., 22 Am. R. 644, with note; rev’g 62 Barb. 316; Hale v. Omaha Nat. Bk., 39 Super. Ct. (J. & S.) 207; aff’g 47 How. Pr. 201, and aff’d in 64 N. Y. 550, but on other grounds; Thomas v. Bacon, 34 Hun, 88; Smith v. Taber, 46 Id. 313; Streeter v. Ward, 12 State Rep. 333; Gregg v. Boyd, 69 Hun, 588; Bleakley v. Sullivan, 62 Id. 243.

12. As to forfeiture, see Harrison v. Clifton, 75 Iowa, 736; s. c., 38 N. W. Rep. 406; Koeleg v. Phelps, 80 Mich. 466; s. c., 45 N. W. Rep. 350; Farnum v. Hefner, 79 Cal. 575; s. c., 21 Pac. Rep. 955; Collier v. Cunningham, 2 Ind. App. 254; s. c., 28 N. E. Rep. 341; Jones v. Durrer, 96 Cal. 95; s, c., 30 Pac. Rep. 1027; Eaton v. Wilcox, 42 Hun, 61.

13. As to re-entry, see Haywood v. Miller, 3 Hill, go.

14. As to apportionment, see Kent County Mut. Ins. Co. v. Burrows (Superior Court), 6 Houston (Del.), 355.

15. As to the effect of abandonment, see Kiplinger v. Green, 61 Mich. 340; s. c., 45 N. W. Rep. 350.

For a note on mining and exploitation leases, see 26 Abb. N. C. 201.

As to covenants to pay taxes, assessments, etc., see note in 29 Abb. N. C. 161.  