ACTION BY LESSOR OR LESSEE 53 



for the recovery of damages due to the commission of 

 voluntary waste by a tenant for life or years. l 



56. The Effect of Special Conditions upon the 

 Form and Time of Action. If a lease contains a cove- 

 nant by the lessee not to commit waste the landlord has 

 an option, if waste is committed, of suing on the covenant 

 or of bringing an action on the case or other action, directly 

 for the waste. 2 It was held in an Oregon case that if a 

 tenant has an option under a lease to purchase the premises 

 leased, no action for waste can be brought until the option 

 expires, 3 but Tiffany thinks that even though it be held 

 that the purchase of a reversion by a tenant would con- 

 stitute a defense to an action for waste, committed before 

 the purchase, yet the mere existence of an option could 

 not have this effect. 4 Coke and other authorities hold 

 that the lessor loses his action for waste if he accepts the 

 premises when surrendered by the lessee, but a Wyoming 

 case holds that the lessor's right of action is not thus lost. 5 

 In a Massachusetts case in which the landlord permitted 

 a lessee to remain in possession after committing waste 

 and accepted rent from him, the court held that the land- 

 lord did not thereby necessarily waive his right to recover 

 damages for the waste and that the question of waiver was 

 one for the jury. 6 The right of a lessor to bring an 

 action in tort for waste is well established 7 and many 

 court dicta indicate that an action will probably he in 

 contract for a breach of the implied contract of the lessee to 

 use the premises leased in a tenant-like manner. 8 



1. 4 Kent Comm. 81 ; Randall v. Cleaveland, 6 Oonn. 328; Dozier v. Gregory, 46 N. C. 



(1 Jones L.) 100; Yocum v. Zahner 162 Pa. 468, 29 Atl. 778; Thackeray v. Eldl- 

 gan, 21 R. I. 481, 44 Atl. 689; Moss Point Lbr. Co. v. Harrison County, 89 Miss. 

 448, 22 So. 290, 873; Greene v. Cole, 2 Saund. 233, Note; Brewer, Waste, 5. 



2. Kinlyside v. Thornton, 2 Wm. Bl. 1111; City of London v. Hedger, 18 Ves. Jr. 355; 



Marker v. Kenrick, 13 C. B. 188; Moore v. Townshend, 33 N. J. L. 284; Moses 

 v. Old Dominion Iron & Nail Works Co., 75 Va. 95; Parrott v. Barney, 2 Abb. 

 197, Fed. Cas. No. 10,773. 



3. Powell v. Dayton S. & G. R. Co., 16 Ore. 33, 16 Pac. Rep. 683, 8 Am. St. Rep. 251. 



4. Land. & Ten., Tiffany, p. 724; See Dupree v. Dupree, 49 N. C. (4 Jones Law) 387, 



69 Am. Dec. 757; Dickinson v. City of Baltimore, 48 Md. 583. 



5. Marshall v. Rugg, 6 Wyo. 270, 44 Pac. 486, 33 L. R. A. 679. 



6. Chalmers v. Smith, 152 Mass. 561, 26 N. E. 95. 11 L. R. A. 769. See Ashton .v 



Golden Gate Lbr. Co. (Calif.) 58 Pac. 1. (Tenant cannot deny title of lessor 

 while tenancy exists.) 



7. Landlord and Tenant, Taylor, Pub. Little, Brown & Co., Boston, Mass. 1904, 



9th. Ed. Vol. 1, pp. 211, 212, 229 and Vol. 2, p. 400. Landlord and Tenant, 

 Tiffany, Pub. Keefe-Davidson Co. St. Paul, Minn. 1910, Vol. 2, p. 2115. 



8. See pp. 727-729, Tiffany, Land. & Ten., and notes. 



