Cole v. Johnson

Weavee, J.

It is true that under the terms of the lease a failure of the tenant to pay any installment of rent when due “authorized the lessor to consider the lease forfeited”; in other words, he had the election to waive strict performance, and permit the tenant to go on to the end of the term, or to insist upon strict performance, and take proper steps to make the forfeiture effective. It is the claim of plaintiff that he elected to pursue the latter course, and it is conceded, as we have seen, that, soon after the date when the rent for the hay and pasture land became due, he served notice upon defendant to surrender possession of the farm. There is, however, no allegation or testimony to the effect that any demand for the payment of said installment was ever made, and we are thus brought to consider the principal question' presented in argument: Is a demand of the rent an essential condition to the enforcement of the forfeiture and the maintenance of forcible entry and detainer? The rule was very strict at common law, and is still observed in most states where no statutory modification has been made, that, to forfeit a lease for nonpayment of rent, demand must be made on the leased premises at or near sundown on the day when such payment falls due. See the numerous authorities cited in 18 Am. & Eng. Ency of Law (2d Ed.) 375. Without attempting now to determine just how far this rule may be abrogated by our statute, we are of the opinion that a demand should be made, and some reasonable opportunity to make payment afforded the tenant, before employing a summary remedy for his ejection. It is a familiar principle that forfeitures are not favored in law, and their effect will be limited by strict construction of statutes and contracts. There is no hardship in this re *670 quirement, and there may be .great hardship in enforcing a technical forfeiture, which a simple demand might have rendered unnecessary. The rule is, salutary and humane, and accords with the general policy of the law. The circumstances of the present case furnish an apt illustration of the propriety and justice of this conclusion. The lease does net specify the number of acres of hay or pasture land, and hence does not in itself furnish the necessary data for ascertaining how much rent was due. -The plaintiff himself did not learn the exact amount until after the trial of this case in justice’s court. To determine that amount required either a mutual agreement as to the amount of land or a measurement of its area. It has frequently been held that upon a contract where the extent of the promisor’s obligation is uncertain, or is not precisely known, but requires some further act of the parties to make the same definite and certain, an action will not be sustained without demand. Chamberlain v. McAllister, 86 Ky. 352 ; Lent v. Padelford, 10 Mass. 230 ( 6 Am. Dec. 119 ); Bush v. Critchfield, 4 Ohio. 103.

The order of the district court in directing a verdict for the defendant was right, and the judgment appealed from ÍS AFFIRMED.