BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER
DAN LEE, JUSTICE, FOR THE COURT:
This appeal stems from an action before the Circuit Court of Harrison County, in which the plaintiff, Red Gate Corporation, sued the defendant, Dickie Joe Ladner, for damages resulting from an alleged breach of a lease of real property. The lease in question was for the agricultural use of a farm owned by Red Gate Corporation and located in Pearl River County, Mississippi.
Red Gate Corporation asserted that Ladner committed various acts of mismanagement, negligence, and waste during his tenancy on the farm. These included: failure to repair fences; destruction of gates, farm dams, hay pens, a wooden bridge, and cattle pens; permitting erosion; removal of fences, fuel pump, diesel fuel, drag harrow, and hay; and excessive planting over the acreage allowed in the lease. The jury returned a verdict for the defendant. The plaintiff has appealed, alleging, among other things, that the jury's verdict was contrary to the law and the testimony. We find that the jury's verdict was supported by sufficient evidence and affirm as to all items except the 250 bales of hay removed by the appellee. With respect to that issue, we reverse and remand for a determination of damages.
Red Gate Corporation owns approximately 838 acres in Pearl River County, Mississippi. In March, 1979, Red Gate leased this property to Dickie Joe Ladner, for the purposes of planting soybeans and raising cattle. Paragraph (9) of the lease read as follows:
(9) The Lessee agrees that the Lessor on this day has left 250 bales of hay on the farm belonging to the Lessor herein and Lessee does hereby agree that upon the end of this agreement that the Lessor will be provided 250 bales of hay of equal quality or pay Lessor the actual cash value of 250 bales of hay of equal quality to Lessor at the date of the termination of this lease.
Additionally, paragraph (16) contained this language:
(16) It is further understood and agreed that at the termination of this lease, Lessee shall have thirty (30) days time to remove any crops, belonging to him, from the premises.
The terms of the lease contemplated that it would terminate on April 30, 1981. On May 1, 1981, Red Gate leased the property to Dossie Barber. However, Barber encountered difficulty in taking possession of the farm. Mr. Ladner's cattle still occupied the farm at that time, and Barber was reluctant to mix the two herds. He attempted to pen Ladner's cattle; however, Ladner and his crew returned to the farm and released them. Ladner's cattle were not removed from the farm until May 23, 1981.
At trial, conflicting evidence was presented relative to the condition of the farm before and after its lease to Ladner. What was undisputed, however, was the fact that when Mr. Ladner took possession of the farm, there were 250 bales of hay on it. Ladner was to return the equivalent in either hay or cash at the end of the lease; however, he returned neither. His position at trial was that he intended to replace the 250 bales of hay with rye grass that he had growing on the farm, but that his performance of this term of the contract was made impossible by Dossie Barber's plowing up his field. According to Ladner, Barber had the rye grass plowed up almost as soon as he took possession of the farm on May 1.
Ladner's defense of impossibility of performance appears to be both inadequately supported by the law and
evidence, and inconsistent with other testimony. Dossie Barber testified that he plowed up some of Ladner's rye grass after taking possession of the farm, but that he was prevented from completing that task by the problems with the cattle. Ladner's testimony on that point differs substantially and is as follows:
"Q. Did you in fact cut any hay on the Red Gate property?
Q. What specifically did Mr. Barber plow under ...