Opinion
December Term, 1896.
Judgment affirmed, with costs, on the opinion of the county judge. All concurred.
The following is the opinion of the county judge:
The words in the contract, "as hereafter mutually agreed," demonstrate that when the contract was executed the parties had not agreed upon the terms of the proposed lease. The evidence shows that, subsequently, they agreed upon all of those terms, except the date of the termination of the lease. I am satisfied that the minds of the parties never met upon that point. The plaintiff insisted that the term should extend to November first, and the defendant Wilkins claimed that it should cease on the first of August, or about that date. I have no doubt that in the earlier negotiations the parties spoke of the season of 1895 as the term of the proposed lease, but when they came to fix the terminus of that season they thus differed and were unable to agree. I do not think that the plaintiff ever intended to accept the use of the land for a shorter period than the full agricultural season of 1895, which, as is well known, would extend to about the first of November. Undoubtedly, in agreeing upon the other provisions of the lease, the parties agreed that one hundred and fifty ($150) dollars, one-half of the rental, should be credited upon the first installment of interest becoming due upon the mortgage, but such agreement was, of course, conditional upon the parties agreeing upon each material element or provision of the lease. The date of the termination was material. If August first was the date, the plaintiff would lose at least the entire crop of the apple orchard; whereas, if November first was the date, he would be able to secure that crop. As the parties failed to agree upon that material element of the lease, all these agreements as to other elements of it were abrogated, and there was in fact no letting. I think that defendant's time to pay the interest may be regarded as extended till April twenty-third, when the negotiations between the parties for the letting finally failed. After that event the defendant had no excuse for his failure to pay the full amount of the interest. The plaintiff allowed him ample time to make such payment, because the action was not brought till the tenth of July. I think that the plaintiff had, then, the right to exercise the election provided for in the bond and mortgage, and make the principal due and payable. Plaintiff is, therefore, entitled to judgment.