majority">Shaw, C. J.

It is to be regretted that the pleadings in this case are somewhat obscure, and the facts in them stated in such a manner, that it is extremely difficult to understand what questions were intended by the parties to be put in issue. The instrument relied on as a lease, executed by both parties, has so 'many provisos, stipulations and limitations, that it is difficult to understand the intentions of the parties to it.

1. We can have no doubt that this instrument is a lease. The words are plain and clear, and used in the present tense, “ hereby leases and demises.” It is expressly for the term of ten ‘ years; and as the rent is to commence on the 1st of January ensuing, it is equivalent to saying that it is for a term of ten *225years, commencing on the 1st of January following its date. It is no objection that the term is to commence in futuro. It .is a familiar principle of law, that a lease may create a term to commence in futuro; but, as a general rule, a ¿leed cannot create a freehold to commence in futuro; and this is the established distinction.

It will not be necessary to consider all the questions raised by the exceptions; we shall notice a few of the most prominent.

2. In regard to the rent of the new part of the building stipulated in the lease to be built by the lessor, and for which the lessee stipulated for the payment of ten per cent, upon the cost as rent, the defendant contended that no rent was due until demand made, or at least until notice was given by the lessor to the lessee of the cost of such new part, on which the ten per cent, was to be computed; but the court ruled that the rent was due without such demand or notice.

The court, on reconsideration, are of opinion that this direction was not correct. The stipulation was to pay a sum, by way of rent for the new part, uncertain at the time it was made, but to be rendered certain by the actual expenditure in the erection. When that should be ascertained, the rent would be made certain by mere computation. But such cost was exclusively within the knowledge of the lessor, who had incurred and paid it. Where a fact, upon which liability to an action depends, lies exclusively or peculiarly within the knowledge of the party entitled to bring an action, the law coincides with the dictate of natural justice, in requiring the creditor to give notice of it. Such notice was peculiarly necessary to the lessee, to enable him to pay his rent at the day, not only to avoid a suit, but to save himself from a forfeiture of his term. The proposal in the lease, that the lessee should advance money for the purpose of building the new part, and take it out of the accruing rents, did not exempt the lessor from the duty of thus giving notice of the cost on which the rent at ten per cent, is to be computed, because he might not pay it at all; or if he paid money on that account, it might not be the exact amount.

3 The defendant contended that the covenants to pay the *226rents in the lease were dependent on the covenants or stipulations of the plaintiff; but the court ruled that the covenants to pay rent for the old part of the building and for the water power were independent of the covenants and stipulations of the lessor, the plaintiff. As to the rent of the new part, the court ruled that if the defendant occupied the new part, his covenant to pay rent was independent of the covenants of the plaintiff. And in another part of the exceptions, it appears that as to the rent due for water power the defendant specially contended that his covenant to pay it depended upon the plaintiff’s covenant to pro cure a wheel and shaft suitable for the use and application of that power to the machinery; but the court ruled otherwise. And further, towards the close of the exceptions, the court instructed the jury that the instrument was a lease, and that it followed, as matter of law, that the rents declared for were due, to wit, $500 for the old building, $555 a year for the water power, and ten per cent, a year on the cost of the new part.

We do not see how these rulings can be sustained, considered in reference to the facts in the case. The premises were leased for a paper mill, and there was a stipulation by the lessor that it should be used for no other purpose than the manufacture of paper. To this purpose water power was essential and indispensable.

Whether covenants in an agreement between parties are dependent and conditional, or are independent and absolute, depends somewhat upon the terms, but much more in. the nature of the things to be done, and their relations to each other.

Nor is it material in what part of the instrument the conditional stipulation appears, if in its nature the one act must necessarily precede the other. If there is a mutual agreement between A and B, A to build a carnage for B at a price agreed, B enters into a stipulation to furnish A the necessary materials. The respective agreements are absolute and unconditional in terms. But it is impossible for A to begin the work until B furnishes the materials for him to work upon; it follows therefore that A’s contract is dependent, and he cannot be chargeable *227with a breach until B has performed on his part. Cadwell v. Blake, 6 Gray, 402.

In the present case, the stipulation on the part of the lessor is briefly and somewhat obscurely expressed; but we think it is quite intelligible. It is thus : towards the close of a long paragraph stipulating, among other things, that Crocker will pay said Weed for thirty seven horse power, $555; and that “ the said lessee will put in, at his own expense, all shafting, gearing, belting and all other machinery in said premises, excepting the main shaft and wheel, which is to be furnished by said Weed.”

As the ‘water power was essential to the entire use c£ the premises as a paper mill, and as that could only be obtained by a main shaft and water wheel, by which the power was to be created and transmitted to all the rest of the machinery, the furnishing of such a water wheel and main shaft by the lessor was a condition precedent, and the stipulation of the lessee to pay rent was dependent, and the direction in this respect was not correct.

Perhaps, however, the defendant did not put his objection upon the ground that the lessor did not furnish any main shaft and wheel, but that he did not furnish a wheel and shaft suitable and properly adapted to the object. There are no such qualifying terms to the stipulation, but we think they may be fairly implied as the legal effect of the stipulation. The obj'ect being to raise and transmit a thirty seven horse power, a stipulation to furnish a wheel for that purpose was equivalent to an engagement to furnish a suitable, proper and sufficient wheel. If such was the intent of the exception, then it appears to us that it would be necessary to discriminate in the instruction to the jury. If the plaintiff furnished no wheel and shaft, it would be a plain failure in the performance of a condition precedent.

But if the lessor did furnish a wheel and shaft, as and for the wheel and shaft stipulated for, and the lessee accepted and went to work with it, and so continued to use it during the time for which rent is claimed, although the lessee shows that it was not suitable and sufficient, still he cannot treat such failure to perform as a breach of condition, which will excuse him from the *228payment of rent. The rent is due, and if the lessee has sustained damage, his remedy is on the lessor’s covenant.

As the jury were instructed that all the covenants for payment of rent were independent and absolute, we think that on this ground, as well as the former, the verdict mtist be set aside, and a new trial ordered.

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