Epitomized Opinion
Plaintiff, who had leased a farm to defendant, brought this action to recover for labor performed and for hay and corn fodder removed from the jBun by defendant contrary to the terms of the |H!.e. Defendant filed a cross-petition to recover JR?r repairs and other matters growing- out of the rlease. The lease provided that defendant should have all the corn todder and hay, “providing- that the same is fed upon said farm and no part of either to be sold off.”
Defendant brought to the farm a certain amount of corn fodder and hay and when he left took the same amount with him. In Common Pleas the court charged the jury that defendant had a right so to do, and that defendant was entitled to recover for repairs he had made on the leased premises. Verdict and judgment were given for defendant. Plainiiff brought error to this court. Held-
There was no error in the charge concerning repairs, for defendant alleged they were made at the request of p’aintiff apart from the terms of the lease. But there was error in the charge concerning' the right to take away corn fodder and hay. The above quoted part of the lease was a restrictive covenant and by it any corn fodder and, hay not fed during the occupancy of the tenant belonged tc the landlord. Judgment reversed and cause remanded.
FUNK, J., concurs. WASHBURN, J., dissents.