Lewis v. Ocean Nav. & Pier Co.

The defendant made a lease to the plaintiff and another of • certain premises at Coney Island for two seasons, terminating with the close • of the season of 1885. By the terms of the lease, the lessees were to con.struct a building upon the demised premises, which they were authorized to remove at the expiration of their term, if all rents and arrearages of rents .should.be fully paid; but, if such rents were not so paid, the building was forfeited to and became the property of the lessor, the defendant. When the lease came to an end, the lessees were in arrears with their rent, and then owed the sum of $150 therefor, which was subsequently paid by the plaintiff. The lessees continued to occupy the building so erected by them upon the demised premises until the month of May, 1886, when they were summarily rejnoved for holding over after the expiration*of their lease. The defendant

If the severe and unrelenting principles of the common law relating to the-subject of forfeitures for the non-performance of conditions are to be applied, to this case, then the rulings of-the trial judge dismissing the plaintiff’s com-' plaint in this action may be upheld and affirmed, under the rules of law pertaining to that subject; otherwise, they are erroneous, and cannot be sustained. We must therefore furnish the solution to that question. It was. within the contemplation of the parties to the lease, and provided in that instrument, that a building should be erected upon the demised premises by the-lessees, in accordance with plans and designs to be approved by an officer of the company, which should be used and occupied by them for the purposes of the business to be conducted at that place during the continuance of their term, and removed by them at the expiration of their lease, if all the rents and arrearages of rents should be fully paid. _ If not so paid, the building-should be forfeited to and become the property of the lessor. Under and in pursuance of the authority so conferred, and in reliance upon the rights and privileges so secured, such a building was erected and occupied by the lessees-during the two seasons embraced in and covered by the lease; and when the-last payment of $250 became due and payable in July, 1885, the president of the company directed the plaintiff to go on and pay the balance of the rent, and said he could remain there another year, and run it the same way, and he-would be able to make all up the next summer. Then the plaintiff paid all the rent for the year 1885 during that season, except the sum of $150, which, he paid in February, 1886. We think this last arrangement with the president constituted an extension of the time for the payment of the rent, and a. waiver of all rights which might have accrued to the company by reason of a. failure to pay when the rent became due by the terms .of the lease.

We also think there was no forfeiture of the building under the terms of the lease. By that instrument the lessees were entitled to remove the structure at the expiration of the lease, if the rent was fully paid; and, “if not so paid,” that is, if not fully paid, the building was' to be forfeited; and so,, conversely, if the rent was fully paid, then no forfeiture resulted. Time was not made the essence of the contract, nor an important element in any respect. If the rent was fully paid, there was no forfeiture, and it was fully paid and. accepted. If these parties entertained the design to make the forfeiture of the-building dependent upon the failure to pay the rent when it became due, they would have expressed such intention in appropriate and decisive language. So much may fairly be assumed; and when, instead of employing any language expressive of such a design or intention, we find a plain expression of a purpose to make the forfeiture dependent upon the ultimate failure to pay the rent in full, we cannot hesitate to find such to have been the intention of' all parties. Moreover, the conduct and conversations of the parties have been in full harmony with such an interpretation of the lease. Ho measures were-taken to enforce the forfeiture, or re-enter upon the premises, when the lessees failed to pay the rent. On the contrary, further time was granted for payment, and encouragements were held out for the occupation of the premises another year; and when, finally, the determination was reached to turn, out the tenants, no re-entry was made, and no claim of forfeiture was inter^ posed, but a resort was had to summary proceedings, under a claim that the tenants were holding over after the expiration Of their term. The provision for a forfeiture was evidently inserted in the lease as a security for the payrneiit óf the rent reserved, and when the rent was paid its office was per