concurring opinion by
Eakin, J.I prefer to state definitely the grounds upon which I concur in remanding this case for further proceedings.
I do not think that, as a general rule, a breach by the lessee of even material covenants in a lease, would authorize a landlord, at his option, to terminate the lease, and bring unlawful detainer. I think the true rule is as laid down by Mr. Wood in his treatise on Landlord and Tenant, that he cannot determine the lease on the breach of the tenant’s express covenant, unless the lease contains express provision for re-entry in case of a breach. Secs. 506 and 540-
A tenancy is always determinable, however, on breach of the conditions implied from the relation of landlord and tenant, or from the terms of the lease. Covenants are not conditions, although provisos are generally so. Even they are not, when any penalty besides forfeiture is annexed to the breach. I desire to avoid any expressions which may be construed as pointing to a doctrine which 1 think dangerous, and maybe oppressive, to-wit: That a landlord, simply from breach of a tenant’s covenants, may determine the lease and put him out. If tenants are willing to risk that, it should be shown by express conditions in the lease.
The case made by the complainant may be considered a flagrant one of fraud and repudiation of the essential obligations which spring from the relation of landlord and tenant. If unanswered or unexplained, it is sufficient to authorize the court to consider the tenancy as abandoned by defendant, and his holding to be by force. It should be answered. We cannot, on demurrer, notice the terms ■of the lease, which is notexhibited.