Opinion
File No. 8905.
Opinion filed May 31, 1947.
Rehearing Denied June 30, 1947.
Landlord and Tenant.
Tenant's obligation under lease terminating February 28, 1945, to shell and deliver landlord's share of corn not later than February 1st following the season raised was extinguished where the corn was too damp to shell without considerable loss, landlord could not have had it shelled and delivered at any time before March 1, 1945, and landlord did not ask tenant to shell corn until month of June, since such facts established an intentional relinquishment of landlord's right.
Appeal from Circuit Court, Lincoln County; Hon. L.L. Fleeger, Judge.
Action by Mike Scarmon and another against Oscar Ramstad to recover damages for failure of defendant as tenant to shell and deliver corn. Judgment for plaintiffs, and defendant appeals.
Reversed.
Harold Bogue, of Canton, for Appellant.
Danforth Danforth, of Sioux Falls, for Respondents.
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.