Teufel v. Rowan

• Decision Date: 04 January 1897
• Docket Number: 82
• Citation: 36 A. 224,179 Pa. 408
• Parties: F. M. Teufel, for use of Leon J. Long, Appellant, v. John Rowan
• Court: Pennsylvania Supreme Court

36 A. 224

179 Pa. 408

F. M. Teufel, for use of Leon J. Long, Appellant, v. John Rowan

No. 82

Supreme Court of Pennsylvania

January 4, 1897

Argued October 30, 1896

Appeal, No. 82, Oct. T., 1896, by plaintiff, from order of C.P. No. 3, Allegheny Co., Nov. T., 1895, No. 107, sustaining exceptions to auditor's report. Affirmed.

Exceptions to auditor's report. Before KENNEDY, P.J.

The facts appear by the opinion of the Supreme Court.

Errors assigned were in sustaining exceptions to auditor's report.

Decree affirmed and appeal dismissed at appellant's costs.

C. S Crawford, for appellant. -- Any act of a creditor by which the debtor is thrown off his guard will entitle the latter to relief against a forfeiture arising by mere default of time McNeil v. Amey, 2 W.N.C. 65.

Equity will not permit a party to take advantage of a contract after a long course of dealing contrary to its terms, without notice that hereafter he intended to enforce his rights: Cogley v. Browne, 11 W.N.C. 224; Wanamaker v. McCaulley, 11 W.N.C. 450; Times Company v. Seibrecht, 11 W.N.C. 283; Duffield v. Hue, 129 Pa. 94; Lynch v. Versailles Fuel Gas Co., 165 Pa. 518; Merrill v. Trimmer, 2 Pa. C.C. 49.

Equity never declares or permits a forfeiture when it works a loss contrary to equity: Brown v. Vandergrift, 80 Pa. 148; Remington v. Irwin, 14 Pa. 145; Decamp v. Feay, 5 S. & R. 328; Forsyth v. Oil Co., 53 Pa. 173; Tiernan v. Roland, 15 Pa. 429.

When a landlord by a course of dealing in accepting overdue rent has put a tenant off his guard, a forfeiture of a lease for nonpunctual payment of rent cannot be enforced, unless notice has been given to the tenant calling upon him for compliance with the strict terms of the lease: Haverstick v. Gas Co., 29 Pa. 256; Bispham's Principles of Equity, sec. 176.

W. G. Guiler, with him M. A. Woodward, Walter Lyon, John F. Sanderson and Charles H. McKee, for appellee. -- The clause providing for the immediate maturity of the rent is not inserted as a mere security, but as a solemn contract, and time is the very essence of the contract: Baldwin v. Vanvorst, 10 N.J. Eq. 577; Hulings v. Drexel, 7 Watts, 126; Smith v. Hooton, 3 Dist. 251; Warwick Iron Co. v. Morton, 148 Pa. 72; Atkinson v. Walton, 162 Pa. 219; Collins v. Rockafellow & Co., 35 Pa. 83.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

The learned auditor, charged with the distribution of the fund raised by the sheriff's sale of the defendant's personal property, reported in substance the following findings of fact, inter alia:

That the defendant, John Rowan, leased from Jacob Kaufman et al., the Central Hotel for five years from April 1, 1892, at a rental varying in amount each year. The rent for the third year, commencing April 1, 1895, was $13,000, payable in advance on the first of each month. By a subsequent and "auxiliary agreement," all the rent reserved in the lease became immediately due and payable upon default or failure for five days on the part of the tenant to pay any of the monthly installments of rent, or any part thereof.

The property levied on and sold was upon the demised premises, at time of seizure, and liable to be distrained for all the rent then due.

At the time of the levy the tenant had already failed to make one or more of the monthly payments of rent for the year commencing April 1, 1895.

Prior to the levy the landlords had accepted from their tenant payments of rent overdue and in arrears under the terms of the lease.

The legal conclusions drawn by the auditor from his findings of fact were, inter alia, substantially as follows:

That the acceptance of overdue rent by the landlords condoned the default arising, under paragraph contained in the "auxiliary agreement," from their tenant's failure to pay his rent according to agreement, "and operated as a waiver of said paragraph; and that said waiver is attended with the same legal consequences with respect to any other or future default by said tenant under said paragraph, as if the covenant therein expressed had never been made." He accordingly held that the landlords were entitled to rent only up to the date of the...