125 P. 1071 | Cal. Ct. App. | 1912
The only question involved is whether a demand for the payment of rent is a condition precedent to the enforcement of the forfeiture of a lease. The premises were rented for the term of seven years and four months, commencing on the fourth day of July, 1910, for the monthly *356 rental of $7.50, payable monthly in advance on the fourth day of each month during said term. It was provided in the lease "that if any rent shall be due and unpaid or if default shall be made in any of the covenants herein contained, then it shall be lawful for the party of the first part to reenter said premises and to remove all persons therefrom." The action was brought to recover possession of the property in consequence of the failure of the lessee to pay the rent as agreed. In the complaint there was no allegation of demand for the rent, and for this omission the court sustained defendant's general demurrer. Plaintiff declining to amend, judgment of dismissal was entered, from which the appeal was taken.
Undoubtedly the general rule is that a demand for the rent must be made before forfeiture will be decreed. InSauer v. Meyer,
In Gaskill v. Trainer,
In 24 Cyc., p. 1354, the rule is stated as follows: "Ordinarily a demand of performance is necessary after the lessee's breach of a covenant to pay taxes or assessments or a failure to pay rent before the lessor can declare a forfeiture. However, the common-law necessity for a demand of rent may be obviated by a statute providing otherwise, by provisions in the lease dispensing with a demand, or by acts of the tenant amounting to a waiver."
It is not contended by appellant that the lease contains any provision dispensing with a demand or that there has been any waiver on the part of the lessee, but the claim is made that the action was brought under section
It is manifest that this requirement imposes no hardship upon the landlord, and it is in keeping with the general attitude of the law toward forfeitures. It is a very simple matter to provide in the lease that no demand for rent shall be required, or if this is not done it should not be considered a very grievous burden to exact of the landlord a request of the tenant for the payment of the rent before depriving him *359
of his possession. It is true that the statute does not expressly require this demand, but it is affirmed by the authorities to be a just and equitable prerequisite to the enforcement of the drastic penalty of forfeiture and we think it should be left undisturbed until the legislature has clearly spoken to the contrary. Appellant, speaking of his contention, admits that "We are somewhat embarrassed by a contrary ruling in Sauer v. Meyer,
We think the judgment should be affirmed, and it is so ordered.
Hart, J., and Chipman, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 26, 1912.