
    Samuel E. Crawley, Respondent, v. Amos Mullins, Appellant.
    1. Landlord and.tenant — Lease, construction of — Abandonment — Jury— —Construction of lease not left to, when. — A dwelling-house was leased solely o¿ condition that the tenant should continuously occupy and run a saw-mill owned by the' landlord.’ This was the sole consideration of the lease. The instrument contained no condition of forfeiture. Held, that an abandonment of the mill was an abandonment of the house, and, at the option of the.landlord, terminated the lease.
    In suit by the landlord for possession of the dwelling-house, the court should tell the jury what formed the consideration -for the lease, as far as shown by the instrument, instead of leaving that point to be determined by the jury.
    
      
      Appeal from Adair Circuit Court.
    
      Be France & Hooper, for appellant.
    Defendant was in peaceable possession under a written lease for one year, and the lease cannot be construed as containing a clause of forfeiture. (Jackson v. Sil ver nail, 15 Johns. 278; Jackson v. Harrison, 17 Johns. 66; Burns v. McCubbin, 3 Kan. 221; Tylef on Eject. 286 ; Taylor on Land, and Ten., §§ 277-8, 291.) Though there is a covenant to surrender in a certain event which takes place, yet the lessor cannot enter and expel the lessee unless the right of' re-entry is reserved in the lease. (1 Washb. Real Prop. 321.)
    
      Harrington & Cover, for respondent,
    cited in argument Wil-lison v. Watkins, 3 Pet. 43; Highland v. Wood, 21 Ill. 470; Leadbeater v. Roth, 25 Ill. 587; 1 Washb. Real Prop. 363; Schuisler v. Ames, 16 Ala. 73 ; McKinney v. Reader, 7 Watts, 123 ; Fortier et al. v. Ballance, 10 Ill. 41.
   Bliss, Judge,

delivered the opinion of the court.

Action for unlawful detainer. The plaintiff had leased a sawmill and dwelling-house to defendant for one year. No money rent was to be paid, but the lease was conditioned that the defendant was to run the mill in a careful and skillful manner; was to put in his arid his boys’ time against the capital invested in the mill, pay half the expenses of running, take care of tools and mill, etc.; in consideration of which the plaintiff was to furnish him the use of a dwelling-house, and the proceeds of the mill were to be divided between them. After running the mill a few months, the defendant went away, leaving his family in the house, and the plaintiff took possession of the mill. The defend- * ant returned, remained a week or two, but did not go into the mill, and again left. The plaintiff then brought this action to obtain possession of the house. •

There is no condition of. forfeiture in the lease, and the action is based solely upon the ground of abandonment. The case was tried in the Circuit Court on appeal, and upon that point the following instruction was given: -“If tbe jury believe from tbe evidence that tbe plaintiff, on tbe 22d of February, 1869, leased to defendant bis steam saw-mill and dwelling-bouse (tbe possession of which is involved in this suit) for one year, and that tbe inducement and consideration for tbe leasing of said dwelling-bouse was tbe leasing of said mill; and shall further believe that tbe defendant, on or about tbe 1st day of July, 1869, quit tbe possession of said mill with tbe intention to abandon tbe same, and did abandon tbe same, then .the abandonment of said mill was an abandonment of said dwelling.”

A number of instructions were asked by defendant and refused, most of which were correct in tbe abstract, but they did not pertain to tbe question developed, and if tbe above instruction be correct, tbe judgment must stand.

An abandonment of tbe premises under tbe circumstances must be held to terminate tbe lease. Tbe benefit to tbe lessor depended entirely upon tbe continued occupation and running of tbe mill, and when it was deserted be bad a right to enter and consider tbe term as ended- by act of tbe lessee. It is analogous to, though stronger than, the case of an abandonment by tbe lessee from whom a money rent is • due, without leaving goods upon tbe premises sufficient to answer tbe rent. In that case it is held that tbe lessor may let tbe term run out, and collect tbe rent if be can, or be may enter; in which ease tbe lessee is responsible for-rent only up to tbe time of entry. (McKinney v. Reader, 7 Watts, 128 ; Schuisler v. Ames, 16 Ala. 73.) In tbe last case it does not appear that tbe rent could not have been collected, and tbe court held that tbe landlord was not bound to let bis premises lie idle and unoccupied, as it might be more injurious to him than to enter and lose tbe rent.

In tbe case at bar tbe court held that if tbe lease of tbe mill was tbe consideration for tbe lease of tbe dwelling-bouse, an abandonment of tbe mill was an abandonment of tbe dwelling.

Tbe instruction is somewhat inartificial, but the jury were not misled and no injustice was done. Tbe court should have construed the writing and decided what was tbe consideration for tbe lease of tbe dwelling-bouse so far as shown by tbe instrument, instead of leaving it to the jury. But' tbe' actual construction was right; possession of the property was given to enable the defendant to run the plaintiff’s mill; there was no other consideration, and by abandoning the mill the substance of the lease was destroyed. A retention of' the house would be a fraud upon the plaintiff, and he should be entitled to possession. In view of this controlling question; the others raised by appellant are unimportant, and the judgment’is affirmed.

The other judges concur.-■  