Equity forbids and I think the law does not require the affirmance of this judgment. The house and outbuildings were wired for electric lights according to the agreement, but the plaintiff was disappointed in her expectation of being able to bring the electric current to her premises on account of the refusal of the owner of land intervening between them and the public supply to license the erection of poles and wires. The lease, without reformation, quite clearly indicated that a material consideration was the fact that elec*228tricity was available for use on the premises ; but if that were doubtful it has been satisfactorily shown by the testimony introduced to reform the lease. Of what use was it to the defendant to have the building wired and properly equipped for electricity if a supply of electricity could not be obtained ? Is it reasonable to suppose that he intended to erect an electric light plant for his own accommodation on a three years’ lease of a summer residence ? The court erred in declining to reform the lease. Had it been reformed in accordance with the answer and the evidence introduced thereunder, it would then have appeared that the plaintiff contracted to bring the electric current to the premises and connect the same with the wires strung throughout the buildings thereon for the use of the defendant immediately after he took possession. As the lease was made April twentieth and he was to take possession May first, probably the limited time would not enable plaintiff to provide for the supply of electricity before defendant took possession. This covenant she failed to keep. It was a condition precedent to her right to recover rent under the lease other than the first quarterly payment which was made in advance. The defendant took possession in ignorance of the fact that the electric light could not be connected with the wires of an electric light company which furnished electricity in the vicinity. He remained in possession and paid rent for the quarter commencing August first on the assurance of the plaintiff that she expected to overcome the difficulty and perform her agreemént. After this payment and during the same month, she abandoned all hope of complying with her agreement in this regard, and so notified the defendant, and he testified, referring to this notice, “After this conversation I moved out.” I think the fair inference from this testimony is that upon its being definitely known that the plaintiff could not perform her contract, they being unable to agree upon a modification thereof, he abandoned the premises. This inference is not overcome by the alleged admission with reference to defendant being dispossessed. It appears by the record that while the defendant had the case his counsel said to plaintiff’s counsel, “ Is it admitted that Mr. Thompson was dispossessed on the following April 2d, 1901, for failure to pay the rent ? ” To which plaintiff’s counsel replied, “We admit that that is a fact.” If this admission on the part of the plaintiff be deemed binding on the *229defendant because thus called forth, it does not necessarily indicate that the defendant actually remained in possession until the date specified; but, to be consistent with the testimony to which allusion has been made, it may be construed as meaning that on that date the plaintiff took possession because of defendant’s failure to pay rent. It is altogether too informal to be regarded as an admission that the defendant was dispossessed pursuant to a final order of a court of competent jurisdiction made in a summary proceeding duly instituted, in that he had been in the actual possession and occupancy of the premises until that time. But be that as it may, this action is founded on the lease as originally made, and neither by the complaint nor by the reply is the issue of waiver of her performance presented. If the court had reformed the lease the plaintiff would be asking a judgment for the full amount of the rent without having performed her agreement to connect the electric current, which, as has been seen, was a condition precedent.
She doubtless would have a cause of action for use and occupation if rent had not been paid, but not on a complaint on the lease for rent reserved. But she has been overpaid and for more than the time the defendant actually occupied the premises.
The alleged waiver of “ electric power damages ” prevented an affirmative recovery or offset of such damages by the defendant; but it in no manner overcomes this obstacle to a recovery on the part of the plaintiff. It was not a waiver of the breach of plaintiff’s covenant, but only of any claim the defendant might have for affirmative relief therefor. The defendant did not subsequently ratify the lease, and his remaining in possession and paying rent was not, under the circumstances, either a waiver or ratification. (Lamare v. Dixon, 43 L. J. Ch. 203.)
These views require that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Judgment affirmed, with costs.