Commonwealth Realty Co. v. Fred Miller Brewing Co.

Rosenberry, J. The principal question raised and the one decisive of the case is as to whether or- not the misconduct of the subtenant, DeSteffen, forfeited the lease of the plaintiff to the Fred Miller Brewing Company and as a necessary consequence its lease to the International Baking Company. It is contended by the defendant Cox that such forfeiture resulted, and the following cases were cited in support of the claim: Shaw v. McCarty, 59 How. Pr. 487; Shepard v. Dye, 137 Wash. 180, 242 Pac. 381; Vincent v. National Drug Stores, Inc. (Pa.) 3 Fed. (2d) 504. It is also claimed that under the provision of the prohibition act (41 U. S. Stats, at Large, 305, ch. 85) which is as follows : “Any violation of this title upon any leased premises by the lessee or occupant thereof shall, at the option of the lessor, work a forfeiture of the lease,” a forfeiture arose, and that by reason thereof the International Baking Company was discharged from further liability for rent. "Upon the facts as found we do not find it necessary to determine these questions. It appears from the findings that the International Baking Company had notice of the illegal conduct of the tenant, DeSteffen; that the Fred Miller Brewing Company did not have such knowledge prior to February 24, 1921. Thereafter the International Baking Company continued to occupy the premises and to pay the rent down to the 30th day of June, 1921. Assuming, but not deciding, that a right of forfeiture arose, by the continued occupancy [300] of the premises' and payment of the rent in accordance with the terms of the lease the International Baking Company waived its right to declare a forfeiture. The nuisance did not continue, DeSteffen removed from the premises on March ISth, and with full knowledge of all the facts the International Baking Company chose to continue the relation of landlord and tenant. While we find no case in point, we see no reason why acts which are field to amount to a waiver of forfeiture by a landlord do not have the same legal consequences as to the tenant when a forfeiture is claimed by him. It has been so held when there was such a breach of a covenant by the landlord as would amount to an eviction of the tenant. Toy v. Olinger, 173 Wis. 277, 181 N. W. 295. See 36 Corp. Jur. 264, note 73. Other questions raised not being necessary to a disposition of this case, we refrain from expressing any opinion thereon. By the Court. — Judgment affirmed.