
    Argued and submitted September 5,
    reversed and remanded November 26, 1979,
    reconsideration denied May 9,
    petition for review allowed July 17, 1980
    WASHINGTON SQUARE, INC., Respondent, v. FIRST LADY BEAUTY SALONS, INC., et al, Appellants.
    
    (No. 42093, CA 13158)
    602 P2d 1083
    John R. Faust, Jr., Portland, argued the cause for lellants. With him on the brief was Janice M. ;wart, Portland.
    Charles R. Markley, Portland, argued the cause for pondent. With him on the brief was Souther, aulding, Kinsey, Williamson & Schwabe, Portland.
    Before Joseph, Presiding Judge, and Lee and hardson, Judges.
    
      LEE, J.
   LEE, J.

Plaintiff brought this FED action to recover posses-on of commercial premises leased for more than one ear. Defendants appeal from the trial court’s judg-ient for plaintiff. We reverse and remand.

Defendant’s first assignment of error is that the ial court erred in striking their third and fourth ffirmative defenses. Defendants’ third affirmative ifense was that their failure to make timely pay-tents of rent was due to "excusable accident or mis-tke.” The fourth affirmative defense was that plain-ff was estopped to terminate the tenancy. Both de-mses were based upon the allegation that, although te lease required payment of rent on the first day of ich month without notice or demand, the parties had illowed the practice of plaintiff sending defendants onthly invoices for the rent and certain other larges and of defendants making payments after ceiving the invoices. Under that practice, the rent as generally not paid by the beginning of the month which it was due.

Plaintiff agrees that the stricken defenses are of a nd generally cognizable in FED proceedings. See, g., Caine v. Powell, 185 Or 322, 202 P2d 931 (1949). owever, plaintiff argues that defenses based on a ndlord’s prior history of accepting late rental pay-ents are precluded as a matter of law by ORS .090. It is unnecessary to decide whether plaintiff is rrect, because plaintiff’s right of termination here is »verned by relevant provisions of the lease agreement rather than by the statute. Cf. Fry v. D. M. Overmyer Co., Inc., 269 Or 281, 306, 525 P2d 140 (1974).

We conclude that the defendants were entitled to attempt to prove their third and fourth affirmative defenses, and the trial court erred in striking them.

Reversed and remanded. 
      
       ORS 91.090 provides:
      "The failure of a tenant to pay the rent reserved by the terms of his lease for the period of 10 days, unless a different period is stipulated in the lease, after it becomes due and payable, operates to terminate his tenancy. No notice to quit or pay the rent is required to render the holding of such tenant thereafter wrongful; however, if the landlord, after such default in payment of rent, accepts payment thereof, the lease is reinstated for the full period fixed by its terms, subject to termination by subsequent defaults in payment of rent.”
     