#### Edward E. Samuel, Respondent, *v.*Edward Roberts, et al., Appellants.

(County Court, Oneida County,

April, 1899.)

Lease — Performance éxcused where the lessee is denied possession.

Where the lessor of a farm and cows upon it notifies the lessee, before the time fixed for performance, that the latter cannot, because of his fraud, have possession of the property and the notice is never withdrawn, the lessor cannot subsequently recover damages for nonperformance as the notice has relieved the lessee from all liability in that regard.

This is an appeal from a judgment rendered before O. S. Evans, a justice of the peace of the town of Remsen, on the 2d day of' *297April, 1898, in favor of plaintiff for $50 damages and $4.35 costs.

The complaint alleged two canses of action. First. That the defendants made certain fraudulent representations as to their ownership of certain farm stock and farming implements and that by reason of said representations the plaintiff was induced to enter into a contract with the defendants, by which he leased to the defendants his farm and thirty-five ( cows for $550 per year. The second cause of action alleged that plaintiff entered into a contract with defendants by which he leased to .defendants his farm and thirtyrfive cows for the agreed rent of $550 per year, and that defendants failed to enter upon said farm pursuant to the terms of the lease and refused to perform their contract. The only evidence of damage was that the rental value of the farm with thirty-five cows was from $12.50 to $13 per cow, and if the farm would keep forty cows the rental value was $520. The defendants gave no evidence.

John F. Rogers, for appellants.

George E. Pritchard, for respondent.

Dunmore, J.

Upon the ground that plaintiff was induced by fraudulent representations to enter into a contract for leasing the farm and cows to defendants, there is no evidence to sustain a recovery for $50 damages. The undisputed evidence shows- that the farm was let for more than it was worth, so that plaintiff was not injured by entering into the contract. The only other ground upon which the recovery can be sustained is upon the second cause of action, in which plaintiff alleges the making of the contract and that defendants refused to perform. Plaintiff notified defendants before the time for the performance of the contract that they could not have the farm. That notice relieved the defendants of any liability for nonperformance. It was notice practically to them that the plaintiff would not permit them to take possession of the farm or perform the contract. Plaintiff contends, however, that that notice was subsequently withdrawn, and that by reason of the withdrawal of that notice the parties were left in the same position as to the contract as if no notice had been given to defendants that they could not perform. The evidence, however, does not show a withdrawal of the notice. Plaintiff testified as follows: *“*I told him if the stories were not true they could have *298the farm; that I would investigate further about the story. He said, “ I am glad to have you do it.” It appears from the evidence that plaintiff made investigation and satisfied himself that the stories were true, and that the defendants would" not be desirable tenants, but it. does not appear that' he, thereafter, notified defendants, either that they could or could" not have the farm. " The notice, therefore, given by plaintiff to defendants that they could not have the farm stood to all intents and purposes. Defendants had. a "right after receiving that notice to understand that they would not be permitted to take possession under the contract, unless they received notice to the contrary, and no. such' notice was given. I do not, therefore, see how plaintiff can recover from defendants, damages for not doing what he, had previously notified them he would not permit them to do. The judgment cannot, therefore, be sustained upon either cause of action alleged in the complaint. ....

For the reason given the judgment must be reversed, with costs*

Judgment reversed, with costs.