104 Mich. 90 | Mich. | 1895
The complainant leased the premises in-controversy to the defendant, the rent being payable-monthly in advance on the 1st day of each month. On September 1, 1892, the rent was not paid, and there was-also a dispute of $4.50, which the circuit judge has determined to have been due and unpaid for back rent. The sum of $11.50 was therefore due and payable on September 1. On September ,2, the complainant served the statutory notice to quit or pay the rent, and on the-same day he was paid and received the sum of $8.50. It is apparent that this paid the back rent, and left $4 'lobe applied upon the month of September, then just commenced. At the expiration of seven days summary proceedings were commenced before a circuit court commissioner to recover possession upon the ground of non-payment of rent.
The defense contends that at this time no. rent was earned by the complainant, as the $4 paid the rent for four-sevenths of the month of September, and that while-the complainant had a right to require payment of rent in advance, according to the terms of the lease, and to-declare the lease forfeited if not paid, he could not receive a part of the rent for the succeeding month, and then enforce the forfeiture which he had declared by his notice.
The fact that rent was payable in advance does not make the actual use of the premises any the less the consideration for the payment. The landlord, by receiving
In our opinion, the judgment of the circuit court should be affirmed, and it will therefore be so ordered.
Counsel cited Bleecker v. Smith, 13 Wend. 530; Prindle v. Anderson, 19 Id. 391; Jackson v. Allen, 3 Cow. 220; Jackson v. Sheldon, 5 Id. 448; Camp v. Pulver, 5 Barb. 97; Hunter v. Osterhoudt, 11 Id. 33; Conway v. Starkweather, 1 Denio, 113; Camp v. Scott, 47 Conn. 366; Richburg v. Bartley, Busb. (N. C.) 418; Gomber v. Hackett, 6 Wis. 323.