
    22646.
    Sinclair Refining Company v. Davis.
    Decided September 23, 1933.
    
      Hall & Jones, for plaintiff in error.
    
      Stanford Arnold, contra.
   Stephens, J.

1. A breach of a contract as to a matter so substantial and fundamental as to defeat the object of the contract may authorize a rescission of the contract by the opposite party. 13 C. J. 613; 6 R. C. L. 930.

2. Where premises equipped for use as a gasoline and oil service station are leased for a term, and the rent reserved consists of a designated sum of money per gallon on all gasoline which the lessee shall sell upon the premises during the term of the lease, the rent not to be less than $10 a month, it is clearly within the contemplation of the parties to the contract that the lessee shall, during the term of the lease, operate upon the premises a service station for the sale of gasoline; and where the lessee, after taking possession of the premises under the lease, fails to operate thereon a service station for the sale of gasoline, although he may continue to occupy the premises, this amounts to a breach of the lease in a matter so substantial and fundamental as to defeat the object of the lease, and the lessor may rescind. The lessor may treat the lessee, for the period of the occupancy of the premises, as a tenant at sufferance or at will, and may collect, as rent for the period of time actually occupied by the lessee, a sum of money equal to the rental value of the premises.

3. The petition in this case, in which the lessor under such a lease sought to recover from the lessee the rental value of the premises for the time occupied, set out a cause of action, and the demurrer was properly overruled.

Judgment affirmed.

Guerry, J., concurs. Jenkins, P. J., absent on account of illness. Sutton, J., disqualified.  