Thomas Peebles & Co. v. Sherman

• Decision Date: 04 March 1921
• Docket Number: No. 22150.,22150.
• Citation: 181 N.W. 715,148 Minn. 282
• Parties: THOMAS PEEBLES & CO. v. SHERMAN et al.
• Court: Minnesota Supreme Court

148 Minn. 282

181 N.W. 715

THOMAS PEEBLES & CO.

v.SHERMAN et al.

No. 22150.

Supreme Court of Minnesota.

March 4, 1921.

Appeal from Municipal Court of Minneapolis; C. L. Smith, Judge.

Action by Thomas Peebles & Co. against John H. Sherman and others. Judgment for defendants, and plaintiff appeals. Reversed.

Syllabus by the Court

By accepting rent accruing after a breach of the conditions of the lease, the landlord waives the right to terminate the lease for such breach if it was known to him when he received the rent, but does not waive the right to terminate it if the breach was not then known to him.

Where a lease is terminated for a default of the tenant after he has made an advance payment of rent, the landlord is entitled to retain such advance payment although the lease was terminated before the beginning of that part of the term upon which such advance payment was to be applied.

Where a tenant voluntarily pays an installment of rent before it is due, and the lease is thereafter terminated for his default before such installment becomes due, he is not entitled to have it returned.

The facts stated in a memorandum made a part of the decision become a part of the findings and specific facts so found control as against general findings, which are merely conclusions drawn therefrom. Edwin S. Slater, of Minneapolis, for appellant.

Shearer, Byard & Trogner, of Minneapolis, for respondents.

TAYLOR, C.

Plaintiff leased an apartment in an apartment building in the city of Minneapolis to defendant Sherman for a term beginning July 1, 1919, and ending August 31, 1920, at a specified rental, payable monthly in advance. On May 7, 1920, plaintiff executed another lease to defendant Sherman for the same premises and on the same terms for a further period of one year to begin on September 1, 1920, and end on August 31, 1921. Both leases contained a provision against subletting, and a further provision authorizing plaintiff to re-enter for breach of the conditions of the lease without such re-entry working a forfeiture of the rents to be paid. Prior to August 20, 1920, defendant Sherman sublet the premises to defendant Peterson. On that date he paid the rent for the month of September to plaintiff who accepted it without knowledge of the subletting. On August 28th, plaintiff learned of the sublease, and on August 30, 1920, began this action under the unlawful detainer statute to recover possession for breach of the condition against subletting. The court rendered judgment for defendants on the ground that plaintiff had waived the forfeiture of the lease by retaining the rent for the month of September. Plaintiff appeals. The evidence is not returned, and the only question presented is whether the findings sustain the judgment.

[1] Where a lease is subject to forfeiture for condition broken, and the landlord, with knowledge thereof, accepts subsequently accruing rent, such acceptance operates as an election to continue the lease in force and as a waiver of the right to forfeit it. But the acceptance of such subsequently accruing rent waives only those rights of forfeiture then known to the landlord. It does not waive the right to terminate the lease for a prior breach of its conditions not known to him at the time he received the rent. 16 Ruling Case Law, 1132, §§ 653, 654, 655; 18 Am. & Eng. Ency. (2d Ed.) 385; Kenny v. Lun, 101 Minn. 253, 112 N. W. 220,11 L. R. A. (N. S.) 831,11 Ann. Cas. 60, and note at page 62.

[2] Where a lease is terminated for a default of the tenant after he has made ‘an advance payment of rent,’ the landlord is entitled to retain such advance payment, although the lease was terminated before the beginning of that part of the term upon which such advance payment was to be applied. Galbraith v. Wood, 124 Minn. 210, 144 N. W. 945,50 L. R. A. (N. S.) 1034, Ann. Cas. 1915B, 609;Evans v. McClure, 108 Ark. 531, 158 S. W. 487;Forgotston v. Brafman (Sup.) 84 N. Y. Supp. 237;Rockwell v. Eiler's Music House, 67 Wash. 478, 122 Pac. 12,39 L. R. A. (N. S.) 894.

[3] The above propositions are firmly established by the authorities. In the present case the lease was terminated by the lessor for...