#### Kossel, Appellant, vs. Potratz, Respondent.

*March 23*

April *13, 1915.*

*Landlord and tenant: Covenant by lessee to destroy noxious weeds: Construction.*

A covenant by tbe lessee of a farm “to destroy all noxious weeds” on tbe premises eacb year did not require bim to exterminate absolutely all noxious weeds, but made it bis duty to adopt all reasonable means and to do all things reasonably adapted to destroy sucb weeds, consistent with good husbandry; and in determining what was reasonable for sucb purpose tbe methods usually employed by farmers generally in tbat vicinity might be considered.

Appeal from a judgment of tbe county court of Winnebago county: Feed Begliegee, Judge.

*Affirmed.*

. Tbis is an action to recover damages for tbe breach of a covenant in a lease.

Tbe plaintiff, tbe owner and lessor of a farm situated in Winnebago county, leased it to tbe defendant under a written lease. Tbe tenancy commenced April 1, 1904, and was extended from time to time and terminated April 1, 1913. Tbe farm consists of about 180 acres, and it appears tbat when tbe tenancy terminated there were about forty acres having quack grass and Canada thistles thereon. Tbe covenants upon which tbe plaintiff relies are:

“AH seeds to be sown to be clear from foul seeds. Second parties to destroy all noxious weeds on leased premises each year during lease, also to destroy same on highways, lanes, and alleys adjoining said premises. Second parties agree to plow all tbe land they found plowed at time of entering upon said premises. Second parties to repair all fences, first parties to furnish all materials for fences.” (Tbe above terms were written in pen and ink; tbe remainder was a printed blank form.)

There was evidence tending to show tbat defendant bad employed tbe means customarily used in tbat vicinity to de*451stroy noxious weeds. Evidence also tends to' show that there-was an increase in the amount of the weeds.

The court charged the jury as follows:

“. . . It was the duty of defendant to adopt all reasonable means and to do all things reasonably adapted to destroy such weeds and which were consistent with good husbandry. In determining what was reasonable for such purpose you have the right to consider the methods usually and customarily employed by farmers generally in that vicinity. ...”

The jury brought in a general verdict for the defendant, and the court thereupon awarded judgment for the defendant dismissing the plaintiffs complaint and for costs. Erom' such judgment this appeal is taken.

*William N. Powers,*for the appellant.

Eor the respondent the cause was submitted on the brief of *Pari P.*Finch.

SiebecKee, J.

The plaintiff contends that the court erred in rejecting evidence he offered to show the difference in-value of the leased premises with and without noxious weeds' thereon and in rejecting.evidence to show that the rent reserved as cash did not express the entire consideration of the contract and that destruction of noxious weeds on the premises was a material consideration for the lease. The court also received evidence over the plaintiff’s objection to the effect that defendant employed the usual methods customarily employed by farmers in his vicinity to destroy noxious weeds. The'plaintiff complains also that the court erroneously instructed the jury as set out in the foregoing statement. It is manifest that the errors insisted on here all pertain to the question whether or not defendant breached the covenant whereby he agreed “to destroy all noxious weeds” on the premises as contemplated by the parties under their agreement. The plaintiff contends that this covenant required of the defendant to absolutely exterminate all noxious weeds *452and to surrender tbe premises entirely freed thereof. It is without dispute that the premises, when surrendered hy defendant, were not free from such weeds. The court interpreted the lease to mean that defendant did not undertake to exterminate all noxious weeds on the premises, but that he obligated himself “to adopt all reasonable means and to do all things reasonably adapted to destroy such.weeds and which were consistent with good husbandry.” We are satisfied that the court properly construed the covenant concerning defendant’s obligation to destroy noxious weeds bn the premises and committed no error in its rulings on evidence and in instructing the jury. It is clear from the surrounding facts and circumstances of the subject covered by this covenant of the lease that the parties did not intend defendant should be required to absolutely exterminate all noxious weeds on the premises and that they contemplated that defendant should employ such means and methods as good hus-bandly in this vicinity required. The jury’s general verdict in defendant’s favor is sustained by the evidence and the court properly awarded judgment in his favor.

*By the Oourt.*— The judgment appealed from is affirmed.