Gluck v. Elkan

• Decision Date: 22 November 1886
• Citation: 36 Minn. 80,30 N.W. 446
• Parties: GLUCK v ELKAN.
• Court: Minnesota Supreme Court

36 Minn. 80

30 N.W. 446

GLUCKvELKAN.

Supreme Court of Minnesota.

November 22, 1886.

(Syllabus by the Court.)

Conditions of a continuing nature in a lease are waived, by the acceptance of rent by the landlord, only as to past breaches. The landlord is not thereby precluded from taking advantage of the forfeiture resulting from a subsequent or continued breach.

Under section 11, c. 84, Gen. St. 1878, to recover possession of premises held contrary to the conditions of a lease, it is not essential that the possession of the defendant be maintained by force and strong hand.

Appeal from a judgment of the municipal court, city of Minneapolis.

Action for recovery of possession of premises, under section 11, c. 84, Gen. St. 1878, for breach of covenant contained in the lease.

Robinson & Baker, for respondent, Gluck.

P. M. Babcock, for appellant, Elkan.

DICKINSON, J

One of the covenants in the lease of the premises to the defendant, and a condition upon which the lease was made, was that the lessee should, at all times, keep a certain stairway and area-a part of the leased premises-open, clean, and free from rubbish. This the defendant did not do. For several months after the defendan's default in this, the plaintiff received the rent for the premises, which was payable monthly in advance. He so received the rent for the month of April, 1886, on the first day of that month. The lease was to terminate May 1, 1886, unless it should be renewed or extended in accordance with the right expressly reserved to the lessee. During the month of April, 1886, the defendant further violated, or continued to violate, the prescribed condition, and neglected and refused, when requested by the plaintiff, to keep the stairway and area open and clean. The plaintiff, on the tenth day of that month, notified the defendant that, on account of the failure of the defendant to perform the conditions of the lease, he should not extend the same.

The condition in question was of a continuing nature. The receiving of rent from month to month would be effectual as a waiver for the past breach of it, but that would not relieve the tenant from the duty of performance in the future. The default and refusal of the defendant in this respect, during the month of April, after the last rent had been paid, justified the plaintiff in terminating the lease, and in refusing to extend it, as otherwise he might perhaps have been required to do. Tayl. Landl & Ten. (7th Ed.) § 500; Block...