Marine Equipment & Supply Co. v. Welsh, 38263
| Decision Date | 27 April 1972 |
| Docket Number | No. 38263,38263 |
| Citation | 196 N.W.2d 911,188 Neb. 385 |
| Parties | MARINE EQUIPMENT & SUPPLY CO., a Nebraska Corporation, Appellee, v. Don WELSH, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A tenant possesses a right to a demand for payment of rent and to a reasonable opportunity to pay. There must be a neglect or refusal on his part before the landlord may claim a forfeiture of the lease or a judgment of ouster for nonpayment of rent.
2. Equity considers statutory provisions concerning nonpayment of rent to secure the rent and not to forfeit the lease, provided that the tenant acts in good faith and pays promptly on demand.
3. Defenses in forcible entry and detainer actions may be equitable. The tenant will be relieved from a technical forfeiture in circumstances in which absolute good faith is shown and the exercise of equitable principles in his behalf is necessary that gross injustice may be prevented.
Leamer & Galvin, John C. Baker, South Sioux City, for appellant.
Smith, Smith & Boyd, South Sioux City, for appellee.
Heard before SPENCER, SMITH, and NEWTON, JJ., and STUART and BUCKLEY, District Judges.
The district court on appeal from county court found Don Welsh guilty of unlawful and forcible detention of business premises for nonpayment of rent. It ordered restitution to Marine Equipment and Supply Co. Welsh appeals. He contends that nonpayment of rent under the circumstances constituted no ground for eviction.
On April 1, 1969, Marine verbally leased premises in South Sioux City to Welsh for a month-to-month term. The rent was to be $175 a month payalbe in advance on the first of the month and the cost of utilities. The utilities were metered separately, billed shortly after the first of each month of use, and due when billed. Billings ordinarily were made not later than the 10th of the month. Welsh operated a beauty shop on the premises.
In the first part of December 1970, Welsh had paid the $175 part of the rent and the utilities to December 1, 1970. Marine timely billed Welsh for the December and January utilities in the sums of $39.34 and $67.96. On February 26, 1971, Marine served Welsh with a 3-day notice to quit the premises. After service of the notice but on the same day Welsh tendered the $69.34 and $67.96. At this time Welsh had paid the $175 sums at due date. Marine refused that tender and a subsequent tender of $175 for March rent. Marine commenced the forcible detention action against Welsh in county court on May 3, 1971. Prior to trial Welsh tendered payment of all sums due, but Marine refused the tender. Welsh offered no excuse for his dilatoriness.
Welsh argues as follows. Acceptance of the rent check of $175 for February waived the default in payment of the bills for December and January utilities. Marine failed to demand payment prior to service of the 3-day...
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Village Development Co., Ltd. v. Hubbard, 55963
...of any notice to quit. See Fritts v. Cloud Oak Flooring Company, 478 S.W.2d 8, 12--13 (Mo.App. 1972); Marine Equipment & Supply Co. v. Welsh, 188 Neb. 385, 196 N.W.2d 911, 913, (1972); 3A Corbin on Contracts, § 754; 51C C.J.S. Landlord & Tenant § In any event, as previously noted, Hubbard p......
- State v. Nero, 38252
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Kleven v. Brunner
...the landlord may claim a forfeiture of the lease or a judgment of ouster for nonpayment of rent." Marine Equipment & Supply Co. v. Welsh, 188 Neb. 385, 387, 196 N.W.2d 911, 913 (1972). See, also, Farmer v. Pitts, 108 Neb. 9, 187 N.W. 95 (1922). "Such provisions of the law and of leases rega......