¶1delivered the opinion of the Court:
¶2There was error in giving the 13th instruction for the defendant.
¶3There was nothing of prevention by the plaintiff of the building of the fence by the defendant at the time and place lie alleges he was ready to build it.
¶4There is no pretense of anything more than a prohibition. There would no such result follow from that as the instruction declares. The defendant Avas in the possession of the land, the owner of it as lessee for the term of five years. He might fence AArhen and Avhcre he liked—do Avith the land as his oavu in this respect, despite any prohibition on the part of the plaintiff, only leaving the AA'hole land fenced at the end of his term. Yielding obedience to such a prohibition would be a voluntary act, upon which could not be founded any such claim of damages as is set up here. But the evidence does not shoAV so much as a prohibition. Although defendant does, in one place in his testimony, state that plaintiff forbade him from chopping any more and building the fence until the road was relocated, that is not the purport of his whole testimony. He states it in two other places that the plaintiff requested him to delay building the fence until he could get the road changed, and that he did as requested, saying that he made no objection to plaintiff to waiting. The plaintiff testified, without any express contradiction, that he requested defendant to delay making the south line of the fence until the determination of the matter of the location of the road, and that defendant made no objections to the delay—that the latter was in favor of the removal of the road, and went with the wife of the owner to get signatures to the petition. Surely, under such testimony there should not have been the instruction that plaintiff was chargeable for the loss of the use of sixty acres of land for one season from the fence not being built. He had reason to suppose that his request to delay the fencing was acceded to as a free act, and without price. At least, to found such a liability as is asserted, there should have been notice beforehand of the price of compliance with plaintiff’s request, to give him an opportunity to say whether he desired compliance upon such terms or not.
¶5There was no express promise here to pay for the loss of the use of this land, and we see nothing in the evidence upon which to found any such implied promise.
¶6We regard the instruction as wrong, and as there was evidence tending to show a breach of the covenants of the lease in the particulars assigned, and considerable damage as resulting, there is reason to think that a recovery by the plaintiff might have been defeated by this instruction.
¶7The opposite instruction upon the subject which was asked for by the plaintiff, was in accordance with the view we have expressed, and should have been given.
¶8The judgment will be reversed and the cause remanded.
¶9Judgment reversed.