Plaintiff brought this FED action to recover posses-on of commercial premises leased for more than one ear. Defendants appeal from the trial court’s judg-ient for plaintiff. We reverse and remand.

Defendant’s first assignment of error is that the ial court erred in striking their third and fourth ffirmative defenses. Defendants’ third affirmative ifense was that their failure to make timely pay-tents of rent was due to "excusable accident or mis-tke.” The fourth affirmative defense was that plain-ff was estopped to terminate the tenancy. Both de-mses were based upon the allegation that, although te lease required payment of rent on the first day of ich month without notice or demand, the parties had illowed the practice of plaintiff sending defendants onthly invoices for the rent and certain other larges and of defendants making payments after ceiving the invoices. Under that practice, the rent as generally not paid by the beginning of the month which it was due.

Plaintiff agrees that the stricken defenses are of a nd generally cognizable in FED proceedings. See, g., Caine v. Powell, 185 Or 322, 202 P2d 931 (1949). owever, plaintiff argues that defenses based on a ndlord’s prior history of accepting late rental pay-ents are precluded as a matter of law by ORS .090. 1 It is unnecessary to decide whether plaintiff is rrect, because plaintiff’s right of termination here is »verned by relevant provisions of the lease agree *272 ment rather than by the statute. Cf. Fry v. D. M. Overmyer Co., Inc., 269 Or 281, 306, 525 P2d 140 (1974).

We conclude that the defendants were entitled to attempt to prove their third and fourth affirmative defenses, and the trial court erred in striking them.

Reversed and remanded.