81 Kan. 780 | Kan. | 1910
'The opinion of the court was delivered by
Stockon undertook to erect and ■furnish a theater which would seat 750 persons, and •Cunningham agreed to rent the building for five years
“If a vendee pays money on a contract of purchase, he can not if in default recover it back. But in the case of a deposit of money by a tenant the courts hold that he may, though in default, recover the deposit back if he satisfies the damages up to the time of dispossession. This may seem anomalous, but it is because the equitable principle of avoiding forfeiture has been applied to the one case, but not to the other.”
Courts generally hold that such deposits should be treated as penalties, and they have been so held even in cases where -there was a provision in the lease itself that the deposit might be forfeited as liquidated damages. In Carson v. Arvantes, 50 Pac. (Colo.) 1080, the “plaintiffs leased from’ defendants a building at an advanced rental of $250 per month, giving a mortgage on lands worth $7200 to secure the punctual performance of their agreement. Subsequently the mortgage was released, and the lessees deposited with the lessors $250, with the provision that in the event of nonpayment of rent the deposit should be forfeited,” and it was held that the deposit should be treated as security only and not as liquidated damages. There the subtenant failed to pay the rent when due and subsequently surrendered possession to the landlord. The court, after showing that the abandonment and surrender of the possession terminated the lease, said:
“Under this rule the landlord, of course, has his election between one of two remedies: He may leave the premises vacant, sue for the rent for the balance of the term, and enforce any security which the lessee gave to insure performance. If he chooses, he may likewise terminate the contract, and enter a claim for rent up to the date of the abandonment and the acceptance of possession. He is not at liberty to take possession, of the premises, and at the same time insist that the contract is in force, and recover rent for the balance of the term.” (10 Colo. App. 382, 387.)
The lease did not contain an express statement that
“When he accomplished it and took possession of the premises the damages with which the plaintiff was chargeable were those only which resulted from breach of the covenants prior to entry of the defendant, upon the termination by the latter of such tenancy, as there could, in the nature of the case, be no breach of them committed by the plaintiff after the effectual termination of such relation and reentry by the defendant.” (Chaude v. Shepard, 122 N. Y. 397, 401.)
In volume 1 of Underhill on Landlord and Tenant, at page 583, in speaking of a deposit out of proportion to the amount of rent due and where the tenant is dispossessed for neglect to pay rent, it is said:
“The presumption in such cases is that the lessor resumed the possession of the premises and has relet them, and if he has done this it is difficult to see any fairness in the proposition that he can receive the rent*789 after his lessee has vacated the premises and at the same time retain a large sum of money as damages, which sum may be three or four times the actual damages. At the most the deposit will be regarded as security only, and if the lessor elects not to accept a surrender he may exhaust the deposit by applying it to arrears of rent as it falls due. This, however, is the most favorable construction that the court will put upon the matter, and on the other hand, if the lessor assumes possession and the loss of rent is readily ascertainable, and particularly if the loss be small, will treat the deposit as a penalty only and will consider that the lessor has waived any claim he might have to it, either as liquidated damages or as security for the rent, by his action in reentering upon the premises.”
In Caesar v. Rubinson, 174 N. Y. 492, a lease provided for an advance payment to secure performance of its conditions by the tenant, and also that the deposit might be retained by the landlord as liquidated damages in case there was a breach of the lease, and it was held that the fact that the deposit was designated as liquidated damages did not warrant the retention of the sum for the failure of the tenant to pay $45 of rent. It was also decided that, $1000 having been deposited by defendant to secure the performance of a lease, and the landlord having asserted his right to reenter for failure of the tenant to pay a monthly rent of $45, the landlord thereby waived the claim to the deposit except so far as it was necessary to apply it in payment of rent then due or accrued. (See, also, Scott v. Montells, 109 N. Y. 1; Michaels v. Fishel, 169 N. Y. 381; Sutton v. Goodman, 194 Mass. 389, Hecklau v. Hauser, 71 N. J. L. 478; Carson v. Arvantes, 27 Colo. 77; 2 McAdam, Land. & Ten., 3d ed., p. 963.)
There is no occasion to consider here the effect of a covenant in a lease requiring a ténant to make good á deficiency arising upon a reentry and reletting of the premises because of the default of the tenant, as the lease in question contained no such provision. Besides,; there is no claim that appellants took possession as
Upon the admitted facts the case was well decided by the trial court, and its judgment is affirmed.