Bacon v. Western Furniture Co.

53 Ind. 229 | Ind. | 1876

Biddle, J.

On the 18th day of April, 1866, Christian Schloer leased certain ground, the right to the possession of which is the controversy in this case, to Hiram S. Rossel, for the term of eight years. The rent reserved was one hundred dollars per year, payable quarterly, commencing on the 17th day of July, 1866, with a clause of forfeiture of the lease upon non-payment of the rent as stipulated.

Under this lease the premises were occupied by the appellee.

On the 13th day of May, 1873, Christian Schloer and his wife sold and conveyed the ground, in' fee simple, to the appellant, and assigned to him in writing the lease made to Rossel.

On July 17th, 1873, the day upon which the rent for one quarter became due, at 3 o’clock in the afternoon, the appellant, at the business room oi the appellee, but not on the premises leased, demanded, in general terms, the rent due under the lease, the payment of which was then refused. On the next day the rent was paid by the appellee, and received and accepted by the appellant, who, on the same day, gave the appellee notice in writing to quit the premises. Soon afterwards, the precise day does not appear, the appellee refusing to yield possession of the premises, the appellant commenced this action to recover possession, upon the ground that the lease was forfeited for the non-payment of the rent upon the day it was due. The finding and judgment of the superior court, at special term, was for the appellee. The judgment was affirmed at general term. This is right.

Forfeitures are not favored in law. They must be strictly construed. In this case, to entitle the appellant to re-enter and possess the premises, he should have demanded the specific amount of rent due, just before sun-set of the day upon which it became due, and upon the premises leased, there being no place of payment mentioned in the lease. His demand, as shown by the record, was not for any specific amount of rent due, it was not made in the premises leased, nor at the right hour of the day. He has not made out his case. Besides, to insist upon a forfeiture of the lease for the non-payment of the rent, which he has received, seems to us a legal solecism.

The acceptance of the rent, though paid after it was duo, was a waiver of his right to enter under the forfeiture. Philips v. Doe, 3 Ind. 132; Meni v. Rathbone, 21 Ind. 454; Taylor Landlord and Tenant, 493; 2 Platt on Leases, 233—338, 467—473, and authorities there cited.

The judgment is affirmed, with costs.