Zotalis v. Cannellos
| Decision Date | 26 October 1917 |
| Docket Number | No. 20467.,20467. |
| Parties | ZOTALIS v. CANNELLOS et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Mankato; Walter A. Plymat, Judge.
Action by Chris Zotalis against Peter Cannellos and others. Judgment for defendants, and plaintiff appeals. Judgment reversed.
By accepting rent after knowledge of a breach of the conditions of the lease, the lessor waives the right to re-enter for such breach, but does not waive the right to re-enter for a similar breach committed thereafter.
The lessor accepted rent with knowledge that a part of the building had been sublet; but the remainder of the building was sublet thereafter, and he is entitled to re-enter for this subseqent breach of the condition against subletting.
Where the lease as originally prepared contained both a covenant against subletting and a condition authorizing the lessor to re-enter in case of a subletting, and the parties erased the covenant, but left the condition, the condition remained in force.
Shaking dice for cigars is ‘gambling’ within the meaning of the provision in the lease which authorizes the lessor to terminate the same in case gambling is allowed upon the premises. S. B. Wilson, Ivan Bowen, and Le Roy Bowen, all of Mankato, for appellant.
C. E. Phillips and C. J. Laurisch, both of Mankato, for respondents.
In 1914 Swan A. Swanson leased a two-story building in the city of Mankato to defendant Cannellos for a term of five years from October 1, 1914, for use as a pool room and shoe-shining parlor. In August, 1916, Swanson sold and conveyed the property together with all his rights under the lease to plaintiff. In November, 1916, plaintiff brought this action in the municipal court of the city of Mankato, under chapter 76 of the General Statutes of 1913, to recover possession of the premises for breach of condtions in the lease. The municipal court rendered judgment for defendants and plaintiff appealed therefrom.
Among other things the lease provides that, ‘if said leased premises shall be appropriated to or used for any other purposes or use than hereinbefore specified, or if any liquor, gambling or other immoral practices are allowed on said premises, or any damage or waste shall be made thereon, or if any part of said premises shall be underlet or this lease be assigned without the consent of said lessor on the back of this lease as above specified,’ then and in either of said cases the lessor or his agent is authorized to terminate the lease and to re-enter and take possession of the premises at any time after such breach without any previous notice of his intention so to do. Plaintiff contends that these conditions have been broken by using the second floor of the building as a rooming house and the basement as a tailor shop; by subletting the different floors of the building; and by permitting gambling therein.
After receiving his lease, Cannellos, with the knowledge and consent of Swanson, sublet the second floor of the building to a third party for use as a rooming house, and this floor has been used for that purpose by such third party ever since. Subsequently Cannellos sublet the basement for a tailor shop. Plaintiff purchased the property with knowledge of these facts, and thereafter accepted the rent for the building thereby recognizing the lease as still in force. The right to re-enter for these breaches of the conditions of the lease was waived.
On August 25, 1916, plaintiff notified Cannellos that he had purchased the building and to pay to him the rent accruing thereafter, and added to the notice: ‘I expect you to remain in possession and not to release the building to any one else.’ On November 7, 1916, Cannellos leased the first floor of the building, being the part thereof used for a pool room and shoe-shining stand, to defendant Perrizo. On November 11, 1916, plaintiff began this action. After the subletting to Perrizo, plaintiff did nothing either by accepting rent or otherwise to waive that breach of the conditions of the lease. The fact that similar prior breaches had been waived did not operate to waive this breach. Gluck v. Elkan, 36 Minn. 80, 30 N. W. 446, and Cannellos had no reason to expect that it would be waived as he had been given notice not to ‘re...
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Central Union Trust Co. v. Blank
...v. Seu Si Lun, 101 Minn. 253, 112 N. W. 220, 11 L. R. A. (N. S.) 831, 11 Ann. Cas. 60 (nuisance through sale of opium); Zotalis v. Cannellos, 138 Minn. 179, 164 N. W. 807, L. R. A. 1918A, 1066 (covenant against subletting and use of premises for gambling); Thomas Peebles & Co. v. Sherman, 1......
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Lillian P. Mayo, Admx. v. Elmer F. Claflin
... ... too, it is very generally held that the acceptance of rent ... accruing after a known forfeiture is a waiver of it ... Zotalis v. Cannellos, 138 Minn. 179, 164 ... N.W. 807, note to L.R.A. 1918A, 1066; Kenny v ... Lun, 11 L.R.A. (N.S.) 831; Gomber v ... Hackett, 6 Wis ... ...
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City of St. Paul v. Stovall
...or contrivance to determine the question as to who wins or who loses [his] money on a contest of chance." See, also, Zotalis v. Cannellos, 138 Minn. 179, 164 N.W. 807, L.R.A.1918A, 1066; Foley v. Whelan, 219 Minn. 209, 17 N.W.2d The evidence which defendant claims was insufficient consists ......
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Canellos v. Zotalis
...demised premises, in violation of the covenants in the lease. After the action was finally determined in this court (Zotalis v. Cannellos, 138 Minn. 179, 164 N. W. 807, L. R. A. 1918A, 1066), without warrant of law, he caused plaintiff to be evicted from the building. Each of these acts was......