The opinion
The defendants demurred to the complaint, for the several causes mentioned in Section 40 of the Code. The complaint states that the defendants "covenanted and agreed with the said plaintiffs to lease to them" certain premises, for the term of one year then next ensuing; and in consideration thereof, the plaintiffs promised the defendants to pay them *Page 620
certain sums of money at specified times. This is an averment of an agreement for a lease. In a subsequent part of the agreement, it is stated that the contract was "in substance and to the effect, that they, the plaintiffs, were immediately thereafter, or as soon as they, the plaintiffs, could make the necessary preparation and arrangements, to enter into and take the possession of the said premises, and have the use and occupation thereof." This averment as clearly imports a present lease, as the one before mentioned does an agreement for a lease. The allegation of the breach does not assist in solving the doubt, for it is general in terms, that the defendants "have wholly neglected, failed and refused to comply with the terms of their said agreement, or to keep and perform any of their covenants, though often requested so to do." The demurrer should have been sustained on the ground of ambiguity. This is not mere matter of form, for the plaintiffs would be entitled to a different measure of damages if it is a lease, than they would be if it is a contract for a lease. Treating the complaint as averring a lease of the premises, the plaintiffs could not recover in this action the rental value of the premises, for they were entitled to the possession of the premises by virtue of the lease, and it was their own fault, so far as the case shows, that they did not take possession. If the contract was an agreement for a lease, the plaintiffs, on a refusal by the defendants to execute a lease, would be entitled to recover the difference between the rental value and the contract price. This defect in the complaint is not cured by the findings — if it could be cured in that manner — for the same ambiguity there appears. It is found that the defendants "made a contract of lease with the plaintiffs, whereby they agreed in consideration * * * * to lease to said plaintiffs the premises."
Judgment reversed and cause remanded, with directions to sustain the demurrer to the complaint.
By CROCKETT, J.: I dissent.
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