Gomber v. Hackett

By the Court, Cole, «T. The rule seems to be well settled that the acceptance of rent by the landlord from the tenant, accruing due, after the forfeiture, will operate as a waiver of the breach complained of (See. 2, Platt on Leases, 468; Taylor, L. & T., Section 497. Jackson vs. Allen, 3 Cow., 229; Bleacher vs. Smith, 13 Wend., 530; Prindle vs. Anderson, 19 Id., 391; Collins vs. Canty, 6 Cush., 415; Goodrich vs. Cordwent, 6 T. R., 219, and cases there cited). In this case the answer alleges that after the commencement of the suit by Hackett to recover possession of the demised premises, for a breach of the condition in [325] reference to cutting timber, to wit: on the 13th of March, 1857, he demanded and received of and from the plaintiff in error, the sum of $140, for rent becoming due subsequent to such breach, and that this was rent for the use of the premises for one year in advance from the 1st of March, 1857. By this act the landlord recognized the lease as a subsisting operative contract; and he ought not therefore to be permitted farther to insist upon the forfeiture, if there had been one. It was optional with him to consider the estate forfeited for condition broken, and proceed to recover possession, or to waive the forfeiture and consider the lease valid. He has made his election and must abide by it. It would be very inequitable and unjust to permit the landlord to recover possession of the premises when he had already received from his tenant the rent for the use of the same to March, 1858. It follows from the view we have taken of the case, that the court improperly sustained the demurrer to the answer. Judgment reversed and cause remanded for further proceedings.