Black v. McLendon

WILLIAMS, Justice. This action arose in justice court when Audra Black and Neva Black, hereinafter referred to as plaintiffs, instituted a forcible entry and detainer action against Barton R. McLendon, hereinafter referred to as defendant. Judgment was rendered for the plaintiffs and defendant appealed to the district court where the case was tried to a jury. At the close of plaintiffs’ evidence •defendant’s demurrer to the evidence was sustained and judgment rendered for defendant, from which plaintiffs appeal. Plaintiffs owned a tract of land in Mc-•Curtain County, and on January 12, 1951, executed a written lease thereon, with the •option to purchase, to William H. Pence and •others for a period of ten years. The consideration for said lease was the sum of $1,000 per year, due and payable on the 1st •day of July of each year. This lease was assigned to defendant who operated a drive-in theatre on the premises covered by the lease. Plaintiffs seek by this action to regain possession of this tract of land. Plaintiffs’ evidence was to the effect that the rent due on July 1, 1951, was not received by them on such date nor was it received on July 2, 1951; that on July 3, 1951, they elected to terminate the lease and executed an instrument declaring the lease at an end and void, which instrument they filed in the office of the County Clerk of McCurtain County on July 5, 1951; that a copy of such instrument was handed to defendant’s attorney on July 5, and a copy was also handed to one of defendant’s employees •on the same date; that on July 6, 1951, defendant’s business manager tendered a check for the rent to one of plaintiffs, which was refused by her, and later on the same •day the rent was tendered in cash and likewise refused; that on July 12, 1951, another representative of defendant again tendered the rent in cash, which tender was again refused; that on July 13, 1951, defendant •deposited the sum of $1,003.61, representing $1,000 rent and $3.61 interest thereon, to plaintiffs’ credit in the First State Bank at Idabel, Oklahoma, and delivered a copy of the deposit slip to plaintiffs. Plaintiffs’ brief does not contain any specification of error, but it is apparent therefrom that the only question presented by this appeal is whether plaintiffs had the right under the law and the terms of the lease contract to declare the lease void without first demanding payment of the rent due. It is the general and uniform rule at common law in the absence of contrary statutory provision, both in this country and in England, that a demand for payment must be made by a lessor as a prerequisite to enforcement of a lease provision for forfeiture or termination upon nonpayment of rent. R. T. Stuart & Co. v. Graham, 117 Okl. 117, 245 P. 608; Welch v. Church, 55 Okl. 600, 155 P. 620; Indian Land & Trust Co. v. Clement, 22 Okl. 40, 109 P. 1089; Chandler v. McGinning, 8 Kan.App. 421, 55 P. 103; Annotation #3, 28 A.L.R.2d 807; 51 C.J.S., Landlord and Tenant, § 114b, p. 694; Thompson on Real Property, Vol. 3, page 738, Section 1483 and cases cited in note thereto; 32 Am.Jur. 724, Landlord and Tenant, § 855. This state has no contrary statutory provision, with the possible exception of 41 O.S.1951 § 6, which provides: “If a tenant, for a period of three months or longer, neglect or refuse to pay rent when due, ten days notice in writing to quit, shall determine the lease, unless such rent be paid before the expiration of said ten days.” Compliance with such statute would possibly obviate the necessity for the common law demand for payment, but there is substituted therefor the requirement of a ten day notice to quit and the provision that payment of the rent within the ten day period will avoid the forfeiture. Plaintiffs did not comply with such statute, however, and do not base their claim of right to recover possession thereon. Plaintiffs contend that the necessity of a demand for payment may be waived [302] by express stipulation in the contract. Such, is the case. Indian Land & Trust Co. v. Clement, supra. A provision for such a waiver will not be extended beyond its clear import, however. 32 Am.Jur. 726. The lease in question contains the following provisions: “And it is also agreed that upon the failure to pay the rentals or any part thereof as herein provided, then the lessor may declare this lease at an end and void, and re-enter the premises and take possession of same. “It is further agreed, that at the end of this lease, or sooner termination thereof, the lessee shall give peaceable possession of the premises to the lessor, and upon the non-payment of the rent or any part thereof at any time said lessor may distrain for rent due and declare this lease at an end and void, and re-enter and recover possession by forcible entry and detainer, and notice of such election and demand of possession are hereby waived * * *» Plaintiffs argue that such provision constitutes a waiver of demand for payment of rent. We do not agree. Obviously neither a waiver of notice of election to forfeit nor a waiver of demand of possession constitutes a waiver of demand of payment of rent. The right to elect to forfeit for nonpayment of rent does not even arise until demand for rent has been made and payment refused, unless waiver of demand for payment of rent is provided in the contract, and the right of lessor to demand possession does not arise until demand for rent has been made and payment refused and election made to forfeit because of such refusal to pay. The lease in question quite clearly waives notice of election to forfeit and demand for possession, but does not waive demand for payment of rent which is a necessary prerequisite to the accrual of the right to elect to forfeit. The case of R. T. Stuart & Co. v. Graham, supra, involved identical lease provisions. In that case we said [117 Okl. 117, 245 P. 610]: “It is true the lease in question in the instant case waived notice of the landlord’s intention to terminate the lease and re-enter the premises, but there was no waiver of the demand for rent.” In the last paragraph of the syllabus in such case we said: “Forfeitures are not favored in law, and a lease contract cannot be forfeited for nonpayment of rent, unless demand is made for the payment of the same.” Since the plaintiffs’ evidence discloses neither a demand for rent nor the service of a statutory notice to quit in lieu thereof, and since the full year’s rental, with interest, was deposited in the First State Bank of Idabel, Oklahoma, to the credit of plaintiffs subsequent to date rent became due but prior to the time of filing their action in the Justice of Peace Court, the trial court properly sustained the demurrer thereto. Judgment affirmed. CORN, V. C. J., and DAVISON, JOHNSON, JACKSON and CARLILE, JJ., concur. HALLEY and BLACKBIRD, JJ., dissent.