Vanderford v. Foreman.

MONTGOMERY, J. The tender, in writing, made by tbe defendant and accepted by tbe plaintiff, and in which there was an offer made to pay a certain amount, less than that mentioned in tbe complaint, in full of rent claimed and the costs, contained tbe following words in its conclusion, “And ask and demand that tbe same be accepted and this action and proceeding cease and be dismissed under said sec. 1 *173 of Tbe Code.” Upon tbe further prosecution of tbe case by tbe plaintiff, his Honor, upon tbe motion of tbe defendant, made, both at tbe call of the case and at tbe end of the evidence, refused to dismiss the action. Tbe plaintiffs alleged in their complaint that tbe lease bad expired on the 31st of December, 1899, and that demand for possession and notice to vacate on that date bad been properly given, and that since the expiration of tbe lease a large amount was due as rent for the occupation of the premises. Tbe defendants contend that tbe plaintiffs can not further prosecute their action for recovery of possession for tbe reason that the tender contained a condition to that effect, and as tbe plaintiffs received tbe amount tendered they are bound by tbe condition; and also, that if it be taken as true that the lease'expired on tbe 31st of December, 1899, yet, when tbe plaintiffs received under the tender the amount offered in settlement of tbe rent claimed for occupation after tbe expiration of tbe lease, the tenancy became one from year to year. We think the defendants’ contention can not be made good. The tender was avowedly made under section 1773 of The *219 Code, but tbe action was brought for tbe recovery of tbe possession of tbe premises, not upon a forfeiture of tbe lease for tbe non-payment of rent, but because of tbe expiration of tbe term; and, therefore, under that section of Tbe Code tbe attempted condition contained in tbe tender could only apply to tbe settlement of tbe dispute about tbe amount of rent due. It is not contended by tbe defendants that tbe tender was made under section 573 of Tbe Code. It stands, then, disconnected with either section of Tbe Code above referred to, "and tbe request made that the suit be dismissed is no more than what it purports to be — a simple request which tbe plaintiffs could comply with or not as they saw fit to do.. It was merely tbe defendants’ view of tbe effect, in law, of tbe acceptance of tbe money under section 1773 of Tbe Code. It concluded tbe plaintiffs as to tbe amount of tbe rent due for tbe time mentioned, but could not affect tbe Court in the plaintiffs’ complaint for tbe recovery of possession' of tbe premises. As to tbe other phase of tbe defendants’ contention, i. e., that tbe acceptance of the rent for the- time after the expiration of tbe term converted tbe tenancy into one from year to year, it may be said that there would be force in it, if there had not been served in proper time a notice upon tbe defendants to vacate 'the premises and deliver possession at tbe end of the term. In an action to recover the possession of leased premises, tbe plaintiff can recover damages for tbe occupation of tbe premises since tbe cessation of tbe estate of the lessee, and surely tbe plaintiff could receive it by voluntary payment without tbe effect of continuing tbe lease. The defendants Avere not entitled to have their fourteen prayers for instruction given, or either one of them, for they all covered tbe two points above discussed, except tbe seventh and the fourteenth; and tbe seventh Avas too general, and tbe fourteenth correct in part and incorrect in part. No Error.