Mansur v. Chamberlin

162 Mo. App. 155 | Mo. Ct. App. | 1912

ELLISON, J.

This is an action for unlawful detainer, in which the plaintiff had judgment in the circuit court.

The premises were situate in Kansas City, Missouri, and were leased to defendants for a term of five years, at a monthly payment, in advance, on the 15th of each month, of one hundred and fifty dollars. The agreement provided that a non-payment of rent as stipulated should forfeit the lease without notice. The rent due the 15th of September, 1910, was not paid, and on the 19th of that month plaintiff went to the premises and demanded it, and so he did again on the next day.

It is contended that since plaintiff demanded the rent after it was due, and after his right of forfeiture had accrued, he waived the forfeiture. This is not the law. If one entitled to a forfeiture demands rent accrued after the date of the right of forfeiture, he waives the forfeiture; but there is no waiver in demanding the payment of that, upon the non-payment of which, the forfeiture depends. To accept rent accruing after the right of forfeiture has. become fixed, is a recognition of a continued tenancy and waives the forfeiture, but no such result follows a demand for what has accrued prior to the forfeiture. [Jackson v. Allen, 3 Cow. 220;.Bleecker v. Smith, 13 Wend. 530; Camp v. Scott, 47 Conn. 366; Silva v. Campbell, 84 Cal. 420, 422; Pendill v. Union Mining Co., 64 Mich. 172, 179; 2 Taylor’s Land. & Ten., secs. 497, 499; 1 Underhill on Land. & Ten., p. 648; 18 Amer. & Eng. Ency. of Law, 387.] What is said on the subject at all in Mooers v. Martin, 23 Mo. App. 654, s. c. 99 Mo. 94, is in line with these authorities. Nothing said in Garnhart v. Finney, 40 Mo. 449, is opposed to the view stated. The remark in that case “a man may be estopped by acceptance of rent”, means rent accrued after forfeiture.

What we have said disposes of objections to the complaint. The judgment is affirmed.

All concur.