Doi

Plaintiff leased from defendant a fruit orchard of about twenty acres for the term of three years from October 16, 1916, agreeing to pay as rental the annual sum of one thousand dollars. The lease provided that “all of the fruit produced upon the premises hereby leased must be delivered to the Auburn Fruit Exchange in the name of the party of the first part (J. B. McMurry), all transactions, accounts, statements, account sales, and checks to be issued in the name of the party of the first part.” The complaint alleged that the fruit crop of 1917 was so delivered and the defendant received therefor the sum of $4,493.36, that a portion of this was paid to plaintiff, but that the defendant withheld the sum of $639.92, which, together with an unknown amount .for rebate, is due the plaintiff. The prayer was for an accounting and a judgment for whatever amount was found due. The answer claimed that no amount was due plaintiff in consequence of certain services performed for him by ¡ defendant and his wife and by reason of damage done to the orchard through the want of proper care and attention on the part of plaintiff. Affirmative relief was, indeed, therein demanded and the same matters…

concur. After more deliberate consideration, I am satisfied that the controlling principle is as stated by the presiding justice.

If the parties had intended to relieve the lessee from liability for any default in case the lessor with knowledge thereof failed to avail himself of the privilege of doing the work himself, it is fair to assume that they would have expressed such intention. We must gather their intention from the language of the instrument itself, 'and so viewing the situation, it seems reasonable to hold that the lessor did not, by his inaction, waive his right to claim damages from the lessee. As a matter of equity it is to be remembered that the proposition involves the willful violation of his covenant on the part of the lessee and no more than the failure to exercise a privilege on the part of the lessor. It is, therefore, morally as well as legally right that the latter, on the showing made, should be permitted to recover the amount of the damage actually suffered by him.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 7, 1919.

All the Justices concurred.