Faylor v. Brice

• Decision Date: 22 September 1893
• Citation: 7 Ind.App. 551,34 N.E. 833
• Parties: FAYLOR v. BRICE.
• Court: Indiana Appellate Court

7 Ind.App. 551

34 N.E. 833

FAYLOR

v.BRICE.

Appellate Court of Indiana.

Sept. 22, 1893.

Appeal from circuit court, Wells county; J. S. Dailey, Judge.

Action by James F. Brice against John L. Faylor. Plaintiff had judgment, and defendant appeals. Reversed.

Mock & Simmons, for appellant. Martin & Vaughn, for appellee.

ROSS, J.

The appellee brought this action against the appellant, asking the forfeiture of a lease, and to recover possession of the leased premises.

The first error assigned calls in question the sufficiency of the complaint. The lease declared on, under the terms of which the appellee, by his complaint, seeks a forfeiture, was to run for a term of one year from the 1st day of June, 1890, with the privilege of an additional two years. The complaint seeks to have a forfeiture declared for failure to pay rent as provided in the lease. Courts do not look with favor on covenants of forfeiture; hence, hold that such covenants must be construed most strictly against the party seeking the forfeiture. The term for which the lease declared on was to run was one year, with the privilege to the lessee to hold thereunder for three years. That he had taken advantage of the privilege, and was holding under the three-year term, is apparent from the allegations of the complaint; the installments of rent falling due on 1st days of October, November, and December, 1891, for the failure to pay which a forfeiture is asked, not having occurred until after the first year of the term had expired. While forfeitures are never favored in law, yet when, by a reasonable construction, it appears that the contracting parties agreed that a forfeiture should take place upon the failure of one of the parties to the contract to comply with a material part thereof, courts will decree a forfeiture. When the covenants of a lease are that the lessee shall pay a certain rental at stipulated intervals, and in case of failure to pay shall forfeit all rights to a continuance of the lease, it cannot be said that such failure to pay is not a material covenant upon which to base a forfeiture. It is urged that the following allegation in the complaint is insufficient to show a demand, viz.: “The plaintiff, just before sunset, duly demanded payment of $120, the amount due on the premises.” In this contention we cannot agree with counsel. The demand is sufficiently alleged. The lease declared on was for a term of three years, the rent being payable monthly, and, in case the rent was not paid when due, it was provided that said lease should terminate at once, without notice. Inasmuch as forfeitures are not favored by law, a landlord cannot re-enter, declaring a forfeiture for the nonpayment of rent, except upon a strict compliance with all the formalities required by the common law. “In every case, before a landlord could enter for the nonpayment of rent, he must have made a formal demand of the precise sum due for the last current quarter; and, if the demand included any portion of the rent of a previous quarter, it would have been bad.” Tayl. Landl. & Ten. § 493. In Philips v. Doe, 3 Ind. 132, it was held that a demand for the rent must be made on the premises before sunset of the day it fell due. See, also, Jenkins v. Jenkins, 63 Ind. 415, and cases cited; 8 Amer. & Eng. Enc. Law, p. 448. The lease under consideration contains a provision that no notice of forfeiture is necessary, for a failure to pay rent, in order to terminate lease. If no notice of forfeiture is necessary, no demand for the rent was necessary. Under the terms of the lease, it was incumbent upon the lessee to pay the rent at a specified time, and a failure on his part worked a forfeiture without notice. Fifty Associates v. Howland, 5 Cush. 214. We think the complaint stated a cause of action.

The court below did not err in sustaining the demurrers to the second and third paragraphs of answer. These answers seek to show a payment of the rent due under the terms of the lease, by the entry of a credit on a note held by the appellant against the appellee; the credit, so far as the answers show, having been made without the knowledge or consent of the appellee. The contention of the appellant is that, inasmuch as the appellee was indebted to him on a note which appellant held against appellee, appellant could not become indebted to the...