June 8, 1931. Suggestion of Error Overruled July 3, 1931.
1. LANDLORD AND TENANT. Lessor's acceptance of rent from subtenant held waiver of provision in lease authorizing forfeiture in case of subletting without lessor's consent.
Where a lease contract provides for forfeiture of the lease if the lessee should sublet or rent the premises without the consent of the lessor, this is waived by the lessor accepting rent from the subtenant of lessee with knowledge of his lease.
2. LANDLORD AND TENANT. Lessor, upon terminating lease for nonpayment of rent and retaking of possession, held not entitled to recover rents payable in advance.
Where a lease contract provides for payment of rent in advance each year of the lease, and shortly after the rent note is due the lessor terminates the lease for nonpayment of rent and takes possession of the premises, he cannot also recover the rent, there being a failure of consideration for the rent demand under such circumstances.
APPEAL from chancery court of Hinds county, First district; HON. V.J. STRICKER, Judge.
Creekmore Creekmore, of Jackson, for appellant.
Where rent is payable in advance and tenant enters upon the term, landlord is entitled to recover rent, even though he re-enters at any time before the expiration of the term.
Galbraith v. Wood, 144 N.W. 945; 1 Tiffany "Landlord and Tenant," 1174; 18 Am. and Eng. Ency 392; 23 Cyc. 1359; Stees v. Cranz, 32 Minn. 313, 20 N.W. 241; 1 Tiffany "Landlord and Tenant" 1174; Happ Wall Paper Company v. Deahl, 125 P. 491; American Bonding Company v. Investment Company, 150 Fed. 17; Hunsdale v. White, 6 Hill, 507; McKeon v. Whitney, 3 Denio 452; Davidson v. Dondi, 2 Ed. Smith 121; Gile v. Comstock, 4 N.Y. 270; Cornwell v. Sanford, 118 N.E. 620; May v. Diaz, 42 Ala. 383; Watson v. Merrill, 136 Fed. 359; Frazer v. Witt, 62 Calif. 309, 207 P. 114; 16 R.C.L. page 1137.
The letter, under the rules of law, applicable, cannot be construed as a forfeiture, for it is necessary that the lessor at the time, make a formal re-entry or do some unequivocal act that will signify to the lessee in a decisive manner his election to terminate the lease.
16 R.C.L. 1145; Ellis v. McDermott, 147 A. 246.
The law is clear that the tenant has only a reasonable time after the alleged eviction within which to exercise his right to vacate the premises, and if he fails to do so he loses the right.
Ellis v. McDermott, 147 A. 246; 16 R.C.L. 949.
An eviction is something done by the landlord and of grave and permanent character for the purpose of and with the intention of depriving the tenant of the premises.
Barratt v. Boddie, 158 Ill. 479.
If the tenant makes no surrender, but occupies the premises after the acts complained of, he will be deemed to have waived his rights to abandon.
Keating v. Springer, 146 Ill. 481.
An assignment of a lease by the lessee does not discharge either the lessee or his surety. It does not have this effect even when the lessor recognizes the assignment by accepting rent from the assignee.
Way v. Read, 6 Allen, 364; Hunt v. Gardner, 39 N.J. 530; Almy v. Green, 13 R.I. 350.
After the forfeiture of a lease for the non-payment of rent, the lessee is still liable for the rent already accrued.
Bonhomia et al. v. Caldwell, 36 F.2d 222.
Watkins, Watkins Eager, of Jackson, for appellee.
Where a landlord resumes possession with the acquiescence of the tenant, or does any act which amounts to an eviction, he will be estopped from disputing the surrender and a formal surrender will be unnecessary.
Welcome v. Hess, 90 Cal. 507, 27 P. 369, 25 Am. St. Rep. 145.
Where the tenant offers to surrender his lease before its expiration and the landlord thereupon enters and takes exclusive possession of the premises, there is thereby effected such a surrender and acquiescence as will terminate the lease.
Kneeland v. Schmidt, 76 Wis. 345.
A landlord may waive a provision of subleasing.
Mattox v. Westcott, 156 Ala. 492, 47 So. 170.
An assignee of a lease who paid rent without objection on the part of the lessor, by that act alone succeeded to all of the rights of the original lessee, and further that the lessor who, knowing of the assignment of the lease, accepted rent from the assignee without objection thereby consented to the assignment.
The requirement of a written consent of the lessor is for his protection alone and that he may either give verbal consent or merely acquiesce in the subletting of the premises.
Dominique v. Connell, Orleans No. 8051 (La. App. 1920); Moreira v. Hickman, Orleans No. 4782.
Appellant was without right or justification in declaring a forfeiture of the lease contract and therefore, having cancelled and abrogated the lease contract by his own wrongful act, appellees are clearly relieved of any further liability for rent.
The landlord in failing to object to a surrender of the leased premises and failing to satisfy the tenant that he would be liable for the rent for the year as constitutes an acceptance of the surrender of the leased premises and a termination of the lease contract.
Stein v. Hyman-Lewis Company, 95 Miss. 293, 48 So. 225.
After the termination of a lease where the tenant continues in possession by permission of the landlord there can be no recovery for rent for such time.
Masonic Lodge v. Presbyterian Church, 103 Miss. 145, 60 So. 66.
At common law non-payment of rent does not operate in the absence of a provision therefor in the lease as a forfeiture of the term or confer upon the lessor the right of re-entry. But where there is a provision in the lease for forfeiture and re-entry for non-payment of rent, such a provision is valid and enforceable.
An eviction of the tenant by the landlord has the effect of suspending the tenant's liability for rent thereafter to become due.
1 Tiffany on Landlord and Tenant, page 1157.
While it is uniformly recognized that an eviction does not relieve from liability for rent which is already due, if the rent is not payable in advance, there are a number of decisions to the effect that, if the rent is payable in advance, the tenant is relieved from liability therefor in case an eviction occurs during the rent period, that is, after the rent is due.
1 Tiffany on Landlord and Tenant, page 1158.
The correct rule is that if the tenant abandons the premises the landlord may let them lie idle and recover rent for the whole term, or he may put an end to the contract or lease by an entry; if he does so, he can only recover the rent actually due at the time he takes possession.
Schulisler Donnell v. Ames, 16 Ala. 73, 50 Am. Dec. 168; Hyman v. Jockey Club Wine, Liquor Cigar Co., 9 Colo. App. 299, 48 P. 671.
If the landlord voluntarily puts an end to the tenancy in the middle of the quarter or the middle of the month, or at any other time between the regular rent days, he cannot recover of the tenant rent for the fraction of time he occupied after the last regular rent day.
Cameron v. Little, 62 Maine 550.
The appellant, Adams, was complainant in the court below and filed a suit against the Graham Stave Heading Company, a corporation, and Eugene Graham, an individual, for five hundred dollars claimed to be due as an installment for rent on certain leased premises in the State of Louisiana, and for one hundred dollars as reasonable attorney's fee for bringing the suit, under the terms of contract providing a fee therefor.
The lease contract is somewhat lengthy, but provided that, for and in consideration of the prompt and faithful performance by the lessee of his agreements and covenants and the punctual payment by the lessee to the lessor of the rents reserved, the lessor leases certain properties to the lessee, the lessee being the Graham Stave and Heading Company, a corporation. The contract provided for two thousand five hundred dollars rent, five hundred dollars of which was paid in cash and five hundred dollars annually for the succeeding years, each five hundred dollars being paid at the beginning of the year. One stipulation was for a reasonable attorney's fee for collection for any one or more of the installments if not paid when due, and that the rents should be payable in advance each year. The lease also had a contract clause that the lessee should not at any time during the term subrent or sublease the premises, or any part of it, to any party or persons without the consent of the lessor, his heirs or assigns, indorsed thereon and duly signed, and that any failure of the lessee to abide by this provision would authorize the lessor, his heirs or assigns, to end and determine this lease and all rights of the lessee hereunder.
The Graham Stave Heading Company subleased the property to one Bratton without the written consent of the lessor, Adams, and Bratton paid some of the rents to Adams, and Adams had knowledge of Bratton's occupancy and the payment of the rent to the plaintiff by him prior to the cancellation of the contract by Adams. The rents were paid until the year 1929. The installment for the year beginning on the twelfth day of November of that year was not paid on that day. On the fourteenth of November, 1929, the appellant wrote the Graham Stave Heading Company as follows: "Your heading mill contract with me (said mill located at Greenville Station, Louisiana) calls for the payment of five hundred dollars November twelfth, 1929, and as yet I have not received your remittance, nor notice why you have failed to remit; you will here take notice that you have forfeited your contract, in not complying therewith. Very truly, John J. Adams." The appellee seems to have accepted this letter as release of the lease contract, and Mr. Bratton secured the consent of Mr. Adams for some material on the lease grounds to remain there for a short time until he could remove it. The lease contract did not, in terms, provide for the forfeiture of the lease for nonpayment of rent.
The provision for forfeiture contained in the lease on account of subletting or subrenting was waived, we think, by the transaction between parties and with knowledge of Adams, accepting payment of rent from Bratton with knowledge of the facts. It is perfectly competent for a person to waive a contract whether in writing or not, and it may waive the provision of a written contract by an oral contract either express or implied.
The chancery court held that there was no right of action in the appellant because he terminated the contract, and, as the other party acquiesced in it, the contract ceased to have operation after receipt of the letter above mentioned. The rent was due, it is true, at the time the letter was received, but the consideration of the rent was for the term to begin on the twelfth day of November for the year following that date, and as the termination of the lease by the act of the lessor, acquiesced in by the lessee, prevented the receipt of the consideration for the rent, we think that the chancery court was correct in holding there was no liability. There was distinctly a failure of consideration brought about by the act of the lessor. He could not forfeit the lease and terminate it and have the use of the premises, and receive the compensation for the rent both. He had a right to elect either one of the two courses of conduct and action. When he chose to terminate the lease, and that choice was acquiesced in by the lessee, then his right to recover rent for the leased premises ceased.
It is argued that the rent being payable in advance was then due and a right of action existed in Adams for the recovery of the rent, and that his terminating the lease did not destroy this right. We think the failure of consideration brought about by the act of the lessor would prevent his recovering under such circumstances. It is not a case where his rent is due, and consideration of the rent has been received by the lessee, that the termination of a lease will not be defeated, but it is a case where there is a failure of consideration for the rent demand brought about by the deliberate election of the lessor to repossess the land rather than to resort to an action at law or a distress for the rent. We are aware of the fact that the nonpayment of rent at common law did not operate per se as a forfeiture of the term, or confer on the lessor the right of re-entry without a provision in the lease for forfeiture for non-payment, but where the parties act with reference to the contract, that is to say where the lessor seeks to cancel a contract for the non-payment of the rent, and the lessee acquiesces therein and agrees thereto, the lease is abrogated, and the right of the lessor to collect is terminated, except as to rent already due, for which a consideration has been received. We are therefore of the opinion that the chancery court reached the correct result, and the judgment will be affirmed.