This is a suit to dissolve a contract of lease, on the ground of nonpayment of rent, and for the recovery of rent alleged to be due, and to become due, during the pendency of this suit. It is the duty of the lessee to pay the rent at the terms agreed on, and if he fail to pay the rent, when it becomes due, he may be expelled from the premises. O. 0. 2680, 2682.
The payment of rent, in pursuance of the terms of the contract of lease, is an essential engagement on the part of the lessee, and his non-compliance with it, gives to the lessor a right to sue for the dissolution of the contract. Civil Code, 2041.
In this case there was judgment for the plaintiff, and the . defendant has appealed.
The answer is a general denial, and a plea of tender of the rent alleged to be due to plaintiff, before the institution of this suit.
The non-payment of the rent as alleged in the petition, was proved. The plea oí tender is not sustained by the evidence.
Following the plea of tender in the answer, is an allegation, that the amount of rent due to plaintiff is deposited — -but in support of this averment, there is no proof.
The judgment condemns the defendant to pay three hundred dollars for four month’s rent of the premises. The rent was at the rate of sixty dollars per month, and payable monthly, and the judgment is erroneous in this respect; it should have been for two hundred and forty dollars.
It is, therefore, ordered, adjudged and decreed, that the judgment, so far as it condemns the defendant to pay three hundred dollars for four months rent, be amended, and instead thereof: It is ordered, adjudged and decreed, that the plaintiff recover of defendant the sum of two hundred and forty dollars for four months rent, from the 20th of November, 1857, to the 20th of March, 1858, and that said judgment be in all other respects affirmed, with costs in the lower court. And it is further ordered and decreed, that plaintiff pay the costs of this appeal.