O'Connor v. Timmermann

• Decision Date: 19 November 1909
• Docket Number: 15,815
• Citation: 123 N.W. 443,85 Neb. 422
• Parties: JOHN J. O'CONNOR, APPELLEE, v. JOHN TIMMERMANN, APPELLANT
• Court: Nebraska Supreme Court

123 N.W. 443

85 Neb. 422

JOHN J. O'CONNOR, APPELLEE, v. JOHN TIMMERMANN, APPELLANT

No. 15,815

Supreme Court of Nebraska

November 19, 1909

APPEAL from the district court for Sarpy county: HOWARD KENNEDY JUDGE. Affirmed.

AFFIRMED.

Charles W. Haller and James T. Begley, for appellant.

J. J O'Connor, I. J. Dunn and A. E. Langdon, contra.

OPINION

LETTON, J.

This is an action of forcible detainer to recover possession of 280 acres of land. The original written lease was made for five years, ending March 1, 1905. With the exception of the first year, as to which it was agreed the rent should be $ 750, the stipulated rent was $ 800 a year, payable $ 400 upon March 1 and $ 400 upon September 1, annually. At the expiration of the lease it was agreed that defendant should hold over as under the old lease. There is no dispute but that during the whole seven years the tenant never paid his rent promptly at the time due, and never paid the amount that he actually agreed to pay by the terms of the lease. A large amount was due at the end of the five-year term.

Perhaps the theory of the defense is best stated in the language of counsel: "That the verdict and judgment are against the weight of the evidence and contrary to law, chiefly for the reason that O'Connor by a long course of dealings with Timmermann lulled him into a feeling of security and repose, and made him believe that failure to make prompt payment of rentals would not cause a forfeiture of his lease, and said O'Connor could not without notice as to the future maintain a forfeiture." It is further contended that credit should have been allowed by the court for the flooded lands, the new lease being made on that basis, and that, if this were done, there would be nothing due. The real defense seems to be that the plaintiff agreed that, because about 150 acres of the land were flooded for a number of years, the rent should be reduced. The evidence fails to show any definite agreement of this nature. Moreover, we think this defense cannot be considered in this case, since, whatever may be the actual amount due under the contract, it is evident that at least $ 500 was long past due at the time the notice to quit was served. In a letter dated February 11, 1907, defendant paid $ 45, and promised to pay $ 500 more on the rent, which he never did. The defendant at that time was more than $ 500 in arrears by his own admission. If the leniency of a landlord in not insisting upon the strict payment of rent according to the terms of a lease would be a defense to an action to recover possession of the premises, then, indeed, the lot of a tenant might often be a hard one, since for their own protection landlords would insist upon strict compliance with the contract.

Defendant cites the case of Hukill v. Myers, 36 W.Va. 639, 15 S.E. 151, as sustaining his position, but we think it is not applicable. That was an action in equity to enjoin subsequent lessees from interfering with a tenant in possession,...