Summary
In McGlynn rent had been accepted, with full knowledge of the breach relied on, for several months without any protest by the landlord.
Summary of this case from Thriftimart, Inc. v. Me & TexOpinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing 25 Cal. 384 at 396.
Appeal from the County Court of the City and County of San Francisco.
Defendants recovered judgment in the Court below, and plaintiffs appealed.
COUNSEL:
Leases, with a term commencing at a time preceding the date, are not without precedent, but on the contrary, are well known to the law and have a fixed construction. " A lease, dated one day, habendum from a day preceding, commences in point of computation from the time marked in the habendum; in point of interest, from the date." (2 Platt on Leases, 50, 53, and cases cited.)
" By appointment of law, the rent is payable on the demised premises, if no other place be appointed by the parties for the purpose," --in the lease. (See 2 Platt on Leases, 100, and cases cited, where he is treating of the contents and parts of a lease; Ib. 333-4, and cases cited.)
The breach of such a covenant, and the consequent forfeiture, is not waived by the subsequent receipt of rent. It is a continuing covenant, and therefore the continuance of the failureto observe it works a continual right to a forfeiture. (See Taylor's Landlord and Tenant, Sec. 500, and cases cited; 2 Platt on Leases, 471-2; Fryett ex dem. Harris v. Jeffrey, 1 Esp. 393; Beach v. Crain , 2 N.Y. 86.)
" Where there is a continuing cause of forfeiture, the landlord will not be precluded from taking advantage of it by receiving rent which accrued after the breach was originally committed." (Taylor's Landlord and Tenant, Section 500; Bleecker v. Smith, 13 Wend. 530; Sheppard v. Allen, 3 Taunton, 78; Fryett v. Jeffries, 1 Esp. 393; Doe v. Bancks, 4 B. & Ald. 401.)
The demand was made one day too soon. The last day of each month of the term of this lease occurs on the first day of each calendar month.
When time is to be computed from or after a certain day, that day is excluded, even though it be the date of the instrument, unless it appears from the instrument itself that a different computation was intended.
" Touching the time of the beginning of a lease for years, it is to be observed that if a lease be made by indenture, bearing date the twenty-sixth of May, etc., to have and to hold for twenty-one years from the date or from the day of the date, it shall begin on the twenty-seventh of May. If the lease bear date the twenty-first of May, to have and to hold from the making thereof, or from henceforth, it shall begin on the day on which it is delivered, for the words of the indenture are not of any effect till the delivery, and thereby from the making, or from henceforth, take their first effect. But if it be ' a die confectiones ,' then it shall begin the next day after the delivery." (Coke on Litt. p. 46, Chap. 7, Sec. 58.)
In Dyer, 218, (b,) it is held that the words " next after the date of the deed" were exclusive of the day of the date.
In Clayton's Case, 3 Coke's Rep. 1, it is held that " from the day of the making" was exclusive. (Cornish v. Cawsey, Style, 118; Bacon v. Waller, Bulstrode, 204; Llewellyn v. Williams, 1 Roll. Rep. 387.)
In Bigelow v. Willson, 1 Pick. 494, the Court say, " that the words 'from the date,' and 'from the day of the date,' when used in a lease to designate the commencement of a term, have precisely the same meaning. This has been denied in some old cases, but thesecases have been overruled, and the principle has been long established."
The Court then refers to Coke on Littleton, and also reviews the case of Pugh v. The Duke of Leeds, Cowper, 714, and shows that the principles laid down by Lord Mansfield in that case are not at all in conflict with the cases above referred to. But that when from other parts of the lease it clearly appears that a different computation of time was intended, then such intention shall not be defeated. We refer the Court also to Henry v. Jones , 8 Mass. 453; Higgins v. Peters, 1 Metcalf, 127; Cornell v. Moulton , 3 Denio, 13.
When " the demand is only in order for a distress, there it is sufficient if it be made on any notorious part of the land, because this is only to entitle him to his remedy for his rent, and therefore the whole land being equally the debtor, and chargeable with the rent, a demand upon it, without going to any particular part of it, is sufficient." (Bacon's Abridg., Ed. of 1854, p. 487, title Rent, I, 3.)
The distinction between a demand for purpose of forfeiture and re-entry, and a demand for the purpose of distress, are marked and well defined.
The rightto re-enter, for breach of this covenant to build, was waived by the acceptance of rent for seven months after the alleged breach. The lessors erected a large warehouse, but not of the dimensions required by the covenant. And, by the acceptance of rent after it was so built, it was accepted by the landlord, and its variance from that provided for was waived, so far at least as the question of re-entry was concerned.
Ralph C. Harrison, and Hoge & Wilson, for Appellants.
S. F. & J. Reynolds, for Respondents.
Hoge & Wilson, in reply.
The demand in front of the warehouse was sufficient.
The cases cited by the respondents' counsel are numerous, but upon examination they will be found either to have no relevancy to the question or not to sustain his position.
Of the cases cited in the respondents' brief the following have no reference to the place or manner of demand, but refer exclusively to the proper day or time of making demand: Chipman v. Emeric , 3 Cal. 283; Gaskill v. Trainer , 3 Cal. 339; Smith's Landlord and Tenant, 119, 120; Taylor's Landlord and Tenant, sec. 297; those cited in the note to sec. 493 of Taylor's Landlord and Tenant, to wit: Clun's Case, 10 Rep. 129 a; 1 Leonard, 141; Cro. Eliz. 209.
In Connor v. Bradley, 1 Howard, 216, cited in note to section 493 of Taylor's Landlord and Tenant, the Court upon this subject merely say: " The demand must be made in the most notorious place of the land, even though there be no person on the land to pay," citing several authorities. Taylor himself, in section 493, says: " The demand must be made at the most notorious place upon the land, which, if there be a dwelling house, is the front door."
So, also, 1 Saunders, 287, also cited in above note.
Coke on Littleton, 202 a, cited in the note to the above section, says: " If one place be as notorious as another, the lessor has his election to demand it at either, and although the lessee be in some other part ready to pay the rent, yet that will not avail him."
The same language is found in 2 Platt on Leases, pp. 333, 334, cited by respondents' counsel.
In 2 Platt on Leases, pp. 333, 334, cited by respondents' counsel, the following is the language used: " If a house or a house and lands form the subject of demise, the lessor must appear at the front door, being the most notorious part of the house, and there demand the rent, whether the lessee or any one on his behalfbe there or not; a demand at the back door is not sufficient."
Coke on Littleton, 153 a, cited in the notes to the above authority, has the following language: " If there be a house and land, a demand on the land is sufficient." These are all the authorities cited by the respondents' counsel, and from them it will be seen that his position cannot be sustained. It is further to be observed that not one of them is an opinion in a case adjudicated upon the point, but that they are all either propositions laid down by elementary writers, or loose dicta uttered by Judges in determining some other question.
The rule to be deduced from all the cases is, that the demand must be made in the most notorious place.
JUDGES: Rhodes, J. Mr. Justice Sawyer, having been attorney in the case in the District Court, did not sit on the hearing of the case. Mr. Justice Shafter, having been consulted in this case, when at the bar, did not participate in the decision nor hearing.
OPINION
RHODES, Judge
By the Court, Rhodes, J., on petition for rehearing.
The appellants insist that a sufficient demand of the rent was made at the dwelling house; and they made the same point in their brief, but it was overlooked by us, probably in consequence of their holding that the demand at the warehouse was sufficient. The Court below found " That the demand was made at each of the doors, on the north, west, and east sides of the warehouse, but that no demand was made at the said dwelling house, or in front, or at the front door thereof." Although the person, while making the demand at the office door, stood near the dwelling house, we doubt if he intended to make a demand at the front door of the dwelling house, and we cannot say that the Court committed an error in finding the fact to be, that no demand was made at that place. We are satisfied that we have correctly stated the law in respect to the place where the demand was required, at common law, to be made. The remarks of Sergeant Williams, in the notes to Duppa v. Mayo, 1 Saund. 287, may have been founded on mere dicta, as stated by the appellants, but that learned writer's notes have for many years been regarded as high authority, and the doctrine that the demand must be made at the front door of the dwelling house, if there is a dwelling house on the leased premises, has been generally recognized by the Courts, except when the rule has been changed by statute.
We are asked to grant a rehearing, that the question may be argued, whether the common law demand was required, when the landlord proceeded under section thirteen of the Forcible Entry Act. If the question was now for the first time before the Supreme Court, we should have great hesitation in holding, that in such a case, the demand as required at common law was necessary to be made; but, in Chipman v. Emeric , 3 Cal. 273, and Gaskill v. Trainer , 3 Cal. 334, it was held, that in order to work a forfeiture for the non-payment of rent, the landlord must make the demand with all the strictness required at common law. Those decisions have been too long recognized as the correct construction of section thirteen of the Forcible Entry Act, to be now changed by the Courts; and the rule has, in fact, been changed by the Legislature since the commencement of this action. (See Statutes 1862, page 420.)
Rehearing denied.