Opinion by
Henderson, J.,The plaintiff leased a farm to the defendant by a contract dated March 11, 1907. The term granted was one year from the following April 1. The lessee was to render to the lessor “one-third of all grain and potatoes raised; one-half the hay; one-half the fruits; and all of said products are to be gathered by the party of the second part and housed until called for. The grain and part of the fruit to be delivered at Shickshinny freight depot if desired, the said J. E. Franklin to pay all turnpike toll incident thereto.” The lease also contained the following provision: “On failure to pay the rent shares as aforesaid the party of the second part stands bound in the penal sum of $500 and confesses judgment for that sum waiving exemption, appraisement, appeal and release of all errors.” The-tenant took possession of the farm and *502engaged in its cultivation. The plaintiff alleging that the defendant had made default in the delivery of the former’s share of the crops caused a judgment to be entered on the penal clause in the lease and issued execution thereon. Subsequently on the application of the defendant the judgment was opened to permit him to make a defense and an issue framed to determine whether the defendant was liable to damages for a breach of his covenants in the lease. The learned trial judge gave binding instructions for the defendant and that action is assigned for error. Two defenses were presented by the appellee: first, that no breach of the contract had occurred; second, that the plaintiff evicted the defendant.
The case was disposed of in the court below on the conclusion that the evidence did not establish a default on the defendant’s part. The particular complaint which the plaintiff undertook to make good was that the lessee had not delivered the crops at Shickshinny as covenanted for. It will be observed on an examination of the lease that the only part of the crop covered by this provision was the grain and part of the fruit. The grain was shown to have consisted of oats and buckwheat. The plaintiff sold his share of the oats and gave an order on the defendant to the purchaser for it. The oats was not dedelivered because as the defendant informed the purchaser ■ it was not yet all thrashed and he was, therefore, not prepared to make the delivery. Part of the oats had been thrashed in the summer but only one-third of that at the most was the property of the plaintiff and, indeed, it may be doubted whether until the whole crop was thrashed and its amount ascertained the plaintiff could be said to have a divisible interest in the portion thrashed. We have examined the evidence carefully and agree with the court below that there is not such evidence of a breach in this respect as to support the judgment against the defendant for damages. And this is true also with reference to the fruit. The fruit more particularly referred to was a small quantity of harvest apples growing on one tree on the farm. *503Just when the request was made for these apples does not appear but is said to have been in June. It is not at all clear that under the terms of the lease it was the duty of the tenant to carry apples to the landlord at any time he requested him so to do. He was bound to deliver to him on request one-half of the fruit. The evidence is that this was largely winter apples which would be. gathered late in the fall. The apples together with the other products were to be gathered by the tenant and “housed until called for.” This seems to contemplate the gathering of the whole crop, and a division proportionate to the interests of the parties. However that may be, we do not regard the evidence on this point as justifying the enforcement of the penalty on the lease. There was no obligatiqn on the tenant to deliver the potatoes and hay at Schick-shinny nor to deliver the grain until after it was all thrashed. We are not able to agree with the contention of the learned counsel for the appellant that the case is a clear breach of the defendant’s obligation under the lease. We are to consider the relation of the parties at the time the judgment was entered. The plaintiff asserts that the lease was broken by the defendant’s default prior to October 24, when the judgment was entered. What the landlord’s rights may be on the lease after the end of the term we need not consider. We are satisfied that the court was not in error in holding that there was a lack of evidence of such a breach in the contract at the date of the entry of judgment as would support the judgment.
There was some evidence that the defendant promised to pay rent after the eviction set up and which would require the submission of the case to the jury on that subject, but we need not consider that in view of the conclusion reached on the first branch of the case.
Judgment affirmed.