3 Kan. 221 | Kan. | 1865
The plaintiffs brought their action against R. S. McOubbin to recover the possession of certain leasehold property in the District Court of Atchison county. The cause was tried by the court upon an agreed statement of facts and judgment rendered for the defendant.
Plaintiffs then moved the court for a new trial, which was refused, and they bring the case here on a petition in error. On the trial below the plaintiffs contended that the lease by virtue of and under which the property was held, had been forfeited,
1st, Because it had been assigned without license from the plaintiff; 2d, For non-payment of taxes, and 3d, Nonpayment of rent. The court found that the lease had not been forfeited for the reasons stated, or either of them, and that the defendant was entitled to the continued possession of the property. Was this finding erroneous? It was stipulated in the lease that the lessee should forfeit the term: 1st, If the lessee failed to pay the rent when due, and 2d, If the lessee failed to pay taxes and assessments levied upon the property, or to refund the amount of the same to the lessors in case they should pay them.
After this agreement concerning forfeiture of the term and not connected therewith, there is the further stipulation that the lessee should not assign the lease without the written consent of the lessors. No penalty is expressly provided in case of a breach of this part of the lease, and unless the penalty of forfeiture is held to extend to it by implication, there could have been no intention on the part of the contracting parties to provide one, but to leave the parties to determine their rights in this respect under the law applicable to such cases.
We are not disposed to favor this doctrine of implication, and more especially when applied to those cases where parties have entered into written contracts with express conditions. The rule is that “ when parties have entered
We think that a fair construction of the terms of the contract in this case justified the court below in holding that the parties thereto did not provide a forfeiture of the lease in case the lessee should assign it without consent of the lessors. The authorities sustaining this view are very numerous.
But the plaintiffs claimed that the lease was forfeited on account of non-payment of rent when due and non-payment of assessments and taxes. The agreed statement shows that the rent was due on the 1st day of July ; that the plaintiffs resided out of the state, having no agent therein; that it was their custom to collect the rent themselves ; that on the fíth day of July, that being the first time any of them had been in the city where the property was situated, the defendant tendered to them the installment of rent due on the 1st.
The lease is silent as to the place where the rent should be paid as it became due. It must be presumed then that the parties intended it should be paid at the place, or at least in the city where the leased property was situated. The tenant could not be expected to go out of the state to hunt up the lessors and tender the rent. This would be asking too much of him — in fact requiring him to attend to that which should be the care of the lessors.
We think that the case most clearly shows that it was the fault of the plaintiffs that the rent was not paid nor offered to be paid until four or five days after it fell due, •and that the defendant did pay the rent or offered to pay it on the first opportunity. A substantial compliance with the terms of an agreement or performance of a condition, is sufficient, and when the non-performance of a condition
In respect to the non-payment of taxes and assessments the case shows that the defendant tendered the amount which had been paid by the lessors on the 5th day of July, and before the commencement of this suit. The lease provides that the lessee shall pay all taxes and assessments or refund to the lessors the amount of the same if so be they should be obliged to pay such taxes by reason of the failure of the lessee to do so. It is plain therefore that the lessee had the right to refund to the plaintiffs the amount of taxes and assessments paid by them, and thus save himself from the penalty of forfeiture. The defendant did all that the right of the case and the terms of the lease required of him.
"We are therefore of the opinion that there is no error in the judgment of the court below.
Judgment affirmed.