
    SCARMON, et al, Respondents, v. RAMSTAD, Appellant
    (27 N. W.2d 583)
    (File No. 8905.
    Opinion filed May 31, 1947.)
    Rehearing Denied June 30, 1947.
    Harold Bogue, of Canton, for Appellant.
    Danforth & Danforth, of Sioux Falls, for Respondents.
   SICKEL, P.J.

This is an action to recover damages for failure of the tenant to shell and deliver corn. The court decided the case in favor of the plaintiffs and defendant has appealed.

Respondents leased to appellant a farm in Lincoln County for a term of one year ending February 28, 1945. The lease provides: “The owner’s share of corn shall be husked out not later than November 20th and shall be shelled and delivered to market not later than February 1st following the season raised.”'

This provision was inserted in the lease for the benefit of the landlord. The tenant husked the corn, and the landlord’s share was piled in the yard. The record shows that the corn was too damp to shell without considerable loss; that the landlord could not have had it shelled and delivered at any time before March 1st, 1945, and it was on this account that the tenant did not shell it during the term of his lease. The evidence also shows that the landlord did not ask the tenant to shell the corn until the month of June. These facts establish an intentional relinquishment of the landlord’s right to have the corn shelled and delivered by the tenant, and the obligation of the tenant was thereby extinguished. 17 C. J. S., Contracts, §§ 492a, 493; Bauman v. Jerome, 21 S. D. 42, 109 N. W. 513; Mascarel v. Lynch, 165 Cal. 476, 132 P. 1034.

Judgment reversed.

POLLEY, J., not sitting.  