Weisel, J.,
delivered the opinion of this Court.
James F. Woodland executed on the 19th day of August, 1856, to Joseph W. Peacock, a lease for his farm in Kent county, called “ Marshy Point,” for the term of four years, commencing on the first day of January, 1857, reserving as rent one-half of all the grain raised on the farm, deducting seed wheat; also, one-half of the potatoes if more than five bushels were planted. The landlord likewise reserved to himself one-half of all the apples each year, and the tenant hound himself to sow one field in clover each year during the term. These were the only reservations and stipulations in the lease.
It appears from the agreed statement of facts in the case that Peacock took possession of the farm under the lease on the first of January, 1857 ; that in the spring of that year a field of 25 acres on the farm was planted in peach trees by the landlord, Woodland; that this field, called then and afterwards the peach orchard field, had been cultivated in corn in 1856 ; that it was also cultivated in corn in 1857 and 1858, the two first years of the lease, by the tenant, producing 1200 and 800 bushels of corn in those years respectively ; and that it was not in regular cultivation in 1859. It was also admitted in said statement that a field planted in peach trees will produce less corn each successive year, other things being equal; that ploughing peach orchards and cultivating them in corn are considered beneficial to the trees, their health and growth, and that ordinarily peach trees do not hear fruit that remains and matures until the fourth year, and the yield is generally not large prior to the trees being four years old.
On the 31st of January, 1859, the third year of the term [414] having commenced, an agreement in writing, signed by Woodland and Peacock, was entered into in these words : “This agreement, made this day between J. E. Woodland and Joseph Peacock, both of Kent Co.,Md., witnesseth that the said Woodland for and in consideration of certain conditions hereinafter mentioned, agrees to lease to the said Peacock, the peach orchard field at Marsh Point, for the term of one year ; the said Peacock agrees to furnish two tons of Peruvian guano for said field, and to till it in corn, the said corn to be planted and worked in farmer-like manner, and the fodder saved in like manner for said Woodland, who agrees for said service of Peacock, to allow him off of said field of corn to take eight hundred bushels.”
It was proved in the cause that this agreement was the result of a conversation a few days before between the parties, in which Peacock told Woodland that he did not think he could till the peach orchard again in corn, that it was not fair he should till it and receive nothing from it, stating his losses the two preceding years in consequence of the peach trees.
Peacock, according to the agreed statement of facts, cultivated the peach orchard field in 1859, in pursuance of the agreement, and assigned all his interest in the lease and crops in the summer of that year to James W. Hurtt, the appellant, the defendant below, who received eight hundred bushels of corn from the field, and also gathered and sold the peaches from the trees both for that year and the year following, and received the money therefor. Woodland, the landlord, having died in March, 1859, this suit was brought by his heirs at law, (the appellees,) to recover the value of the peach crop of that year.
This controversy as to the right to the peaches, depends upon the character and construction of the agreement of 81st of January, 1859.
[415] By the appellees it is contended that it operated as a surrender of the lease so far as the peach orchard was concerned, and the fruit became their right and property. The two prayers of the plaintiffs below were based upon this construction and assumed legal effect of it. By the first of these prayers the instruction was asked, that if the jury believed that the lease and the agreement had been executed by the parties to them, then the lease was surrendered and put an end to by the agreement, so far as concerned the peach orchard field ; and by the second, that by a true construction of the agreement, the peaches growing on the peach orchard field were not conveyed to Peacock, the tenant, but remained the property of Woodland, the lessor.
It is not pretended that the lease, as to this field, had been surrendered in any way at any time previous to the agreement. The agreement itself, and what took place under it, are relied upon by the appellees as a surrender of the lease by operation of law ; not by way of a new lease ; for if so construed, then the lessee would be clearly entitled to the peach crop, inasmuch as it was not reserved by the instrument to the landlord.
Can it then be construed or regarded as a contract, so inconsistent with the terms of the lease and the relation of landlord and tenant under it, as to operate a surrender of the lease as to this field, or to change the rights of the tenant, under the lease, to the peach crop ?
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Weisel, J.,
delivered the opinion of this Court.
James F. Woodland executed on the 19th day of August, 1856, to Joseph W. Peacock, a lease for his farm in Kent county, called “ Marshy Point,” for the term of four years, commencing on the first day of January, 1857, reserving as rent one-half of all the grain raised on the farm, deducting seed wheat; also, one-half of the potatoes if more than five bushels were planted. The landlord likewise reserved to himself one-half of all the apples each year, and the tenant hound himself to sow one field in clover each year during the term. These were the only reservations and stipulations in the lease.
It appears from the agreed statement of facts in the case that Peacock took possession of the farm under the lease on the first of January, 1857 ; that in the spring of that year a field of 25 acres on the farm was planted in peach trees by the landlord, Woodland; that this field, called then and afterwards the peach orchard field, had been cultivated in corn in 1856 ; that it was also cultivated in corn in 1857 and 1858, the two first years of the lease, by the tenant, producing 1200 and 800 bushels of corn in those years respectively ; and that it was not in regular cultivation in 1859. It was also admitted in said statement that a field planted in peach trees will produce less corn each successive year, other things being equal; that ploughing peach orchards and cultivating them in corn are considered beneficial to the trees, their health and growth, and that ordinarily peach trees do not hear fruit that remains and matures until the fourth year, and the yield is generally not large prior to the trees being four years old.
On the 31st of January, 1859, the third year of the term [414] having commenced, an agreement in writing, signed by Woodland and Peacock, was entered into in these words : “This agreement, made this day between J. E. Woodland and Joseph Peacock, both of Kent Co.,Md., witnesseth that the said Woodland for and in consideration of certain conditions hereinafter mentioned, agrees to lease to the said Peacock, the peach orchard field at Marsh Point, for the term of one year ; the said Peacock agrees to furnish two tons of Peruvian guano for said field, and to till it in corn, the said corn to be planted and worked in farmer-like manner, and the fodder saved in like manner for said Woodland, who agrees for said service of Peacock, to allow him off of said field of corn to take eight hundred bushels.”
It was proved in the cause that this agreement was the result of a conversation a few days before between the parties, in which Peacock told Woodland that he did not think he could till the peach orchard again in corn, that it was not fair he should till it and receive nothing from it, stating his losses the two preceding years in consequence of the peach trees.
Peacock, according to the agreed statement of facts, cultivated the peach orchard field in 1859, in pursuance of the agreement, and assigned all his interest in the lease and crops in the summer of that year to James W. Hurtt, the appellant, the defendant below, who received eight hundred bushels of corn from the field, and also gathered and sold the peaches from the trees both for that year and the year following, and received the money therefor. Woodland, the landlord, having died in March, 1859, this suit was brought by his heirs at law, (the appellees,) to recover the value of the peach crop of that year.
This controversy as to the right to the peaches, depends upon the character and construction of the agreement of 81st of January, 1859.
[415] By the appellees it is contended that it operated as a surrender of the lease so far as the peach orchard was concerned, and the fruit became their right and property. The two prayers of the plaintiffs below were based upon this construction and assumed legal effect of it. By the first of these prayers the instruction was asked, that if the jury believed that the lease and the agreement had been executed by the parties to them, then the lease was surrendered and put an end to by the agreement, so far as concerned the peach orchard field ; and by the second, that by a true construction of the agreement, the peaches growing on the peach orchard field were not conveyed to Peacock, the tenant, but remained the property of Woodland, the lessor.
It is not pretended that the lease, as to this field, had been surrendered in any way at any time previous to the agreement. The agreement itself, and what took place under it, are relied upon by the appellees as a surrender of the lease by operation of law ; not by way of a new lease ; for if so construed, then the lessee would be clearly entitled to the peach crop, inasmuch as it was not reserved by the instrument to the landlord.
Can it then be construed or regarded as a contract, so inconsistent with the terms of the lease and the relation of landlord and tenant under it, as to operate a surrender of the lease as to this field, or to change the rights of the tenant, under the lease, to the peach crop ?
We do not see that such is the character or legal effect of the agreement. Looking at it and its attendant circumstances as given in proof, we discover nothing to change the relation of landlord and tenant that existed between the parties under the lease. The field was a part of the demised premises which the landlord, during the lease, had been permitted to plant in peach trees. To encourage their growth the tenant had cultivated it two successive years in [416] corn, and. as lie alleged, at a loss, rendering half of the yield to his landlord as rent reserved hy the lease. It was not in regular cultivation in 1859, the next year. To repeat the cultivation was beneficial to the landlord in the growth of his trees, but was not the duty of the tenant, who was unwilling to expend another year’s labor upon it without an increased remuneration, a share larger than that which the terms of the lease.would afford him, hence the agreement, in which the only change is in relation to this field, stipulating for another year’s cultivation of it in corn at an increased compensation to the tenant for the service and outlay he was to bestow, and the risk he was to incur, the landlord being satisfied with the fodder and all the corn raised above 800 bushels as his portion. The agreement is entirely silent as to the peaches, and nothing was said by the parties about them when the negotiation was in progress. Whatever opinion the landlord may have secretly entertained at the time, and afterwards openly expressed respecting his right to them, it is very clear from the tenant’s declarations in reference to the subject, that he did not design to relinquish by the agreement his rights as tenant to the fruit. So far as his consent was necessary to the disturbance of the relation of landlord and tenant, it had not been given. The terms were only varied as to a portion of the leased premises, but the relation itself, and all rights not affected by the agreement, remained as before. If the agreement had not been entered into, the peaches were the tenant’s, and there is nothing in the agreement itself, or in its mode of execution, which could have the effect of depriving him of this right. If he meditated any sharpness in the bargain, he had the benefit of it in the corn which he expressly stipulated for. If the landlord plumed himself upon his sagacity, he failed in the scheme by not being as equally express in reserving the [417] fruit of the trees ; the bare mention of which would in all probability have defeated the arrangement, and left the field without the additional stimulus of a year’s cultivation.
( Decided January 22nd, 1866.)
We therefore are of opinion that the relation of landlord and tenant, as to this field, continued notwithstanding the agreement, and that the tenant’s right to the peaches was not impaired by it. The Court below was therefore in error in granting the prayers of the plaintiffs.
Having determined that the agreement did not deprive the lessee of his right to the peaches, it might be immaterial to pass upon the instruction of the Court below on the defendant’s prayer.
But the Court think, on examining the prayer and the form of the instruction asked by it, in the light of the various decisions cited in the argument, that the Court below was correct in refusing the instruction sought. The question was not as to the admissibility of the evidence to prove fraud, for all the evidence was in for the purposes of the cause. But the instruction, if given, was calculated to mislead the jury, who might well have supposed that the Court was instructing them as to the sufficiency in fact of the evidence to prove the alleged fraud. See 16 Md. Rep., 445. Maltby vs. North W. Va. R. R. Co.
Judgment reversed and procedendo awarded.