Patterson v. Carrel

Beooke, J. (after stating the facts). Assuming that there was a breach of the covenant against subletting without the written consent of the lessor (which does not clearly appear from the record), the question arises whether the landlord, Mars, after notice of the alleged breach, by his conduct in accepting rent from the new tenant and permitting him to expend money in repairs, waived his right to insist upon forfeiture under the terms of the lease ? The rule is laid down in 24 Cyc. p. 970, as follows:' [298] “If the lessor, with notice of a breach of the restriction against assigning, permits the assignee to remain in possession and accepts subsequently accruing rents from him, the breach is waived.” This rule is abundantly supported by the authorities cited in note 42 tó the text. See, also, Batley v. Dewalt, 56 Wash. 431 (105 Pac. 1029); Conger v. Duryee, 90 N. Y. 594; Gulf, etc., R. Co. v. Settegast, 79 Tex. 256 (15 S. W. 228); 18 Am. & Eng. Enc. Law (2d Ed.), pp. 382 and 386. If the lessor after notice of the breach permits the assignee to expend money in repairs upon the leased premises, the breach is waived. E. H. Powers Shoe Co. v. Odd Fellows Hall Co., 133 Mo. App. 229 (113 S. W. 253); Moses v. Loomis, 156 Ill. 392 (40 N. E. 952, 47 Am. St. Rep. 194). See, also, Barrie v. Smith, 47 Mich. 130 (10 N. W. 168). The act of the lessor in waiving the alleged breach is binding upon his vendees, the complainants (Stoddard v. Gallagher, 133 Mich. 374 [94 N. W. 1051]), even though they by their own act in accepting rent and giving a conditional receipt therefor did not waive. Upon this point, see 24 Cyc. p. 1363, and note. Under the undisputed facts and the applicable law, the verdict was properly directed. The judgment is affirmed. Moore, C. J., and Steers, McAlvay, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.