Parsons v. Wright , 102 Iowa 473 ( 1897 )

Given, J.

I. It will be observed that this action is not to recover for the monthly rent of six dollars alleged to be due and unpaid, nor to recover for possession of the premises after the expiration of the year for which the lease ran. It is to recover one dollar per day under the provisions of the lease quoted above, upon the theory that the lease had been forfeited. The court instructed as follows: “You are instructed that under the terms of the written lease and under the undisputed evidence, plaintiff, as a matter of law, would not be entitled to recover for forfeiture claimed, but only for the unpaid rent during the time the premises were occupied by defendant, at the rate of six dollars per month, with interest at six per cent, on each month’s rent from the time it became due.” Plaintiff complains of this instruction upon the ground that his claim that the one dollar per day is stipulated and liquidated damages is not denied in the answer. The pleadings, though voluminous, are not as definite as they should be. For instance, plaintiff sued to recover for possession held during the term of the lease, relying upon a forfeiture thereof by a failure to pay rent. The lease gives the plaintiff the option to declare a forfeiture for such a failure, but he does not aver that he ever exercised that option, or declared the lease forfeited. Neither does he allege, in terms, that the amount claimed is due as liquidated damages, but simply alleges that the sum “is justly due from defendant.” We think defendant’s denial that there is any .sum whatever due to the plaintiff under the lease was sufficient to put in issue the nature of plaintiff’s -claim, and to call for an instruction on that subject.

II. Plaintiff contends that the clause in the lease quoted above fixes the one dollar per day as liquidated damages, and not as penalty, and therefore the court erred in giving said instruction. If it be conceded that the provision as to one dollar per day is liquidated damages and not penalty,- — a matter we do not determine, — yet, under the uncqntradicted evidence, the instruction was not prejudicial to the plaintiff. Under the lease the rent was not payable until the end of each calendar month. Plaintiff says in his petition, filed-August 22, 1895, that defendant has neglected and refused to pay the rent for July and August, 1895. The rent for August was not -due at the commencement of this action, -and the right to then forfeit the lease rested solely upon'the failure to pay the six dollars for July. Plaintiff 'admits in his evidence that he was occupying part of the leased premises with wood, clover seed, and Other articles, as charged in the'counter-claim - that the-room occupied by the wood would be worth one dollar and fifty cents, the clover seed fifty cents, and the rubbish up stairs fifty cents a month. It is very clear, under the evidence, that the jury was. warranted in finding in favor of the defendant on his counter-claim in an amount equal to that due to the plaintiff for rent. This indebtedness of the plaintiff to the defendant existed at the time that the plaintiff claims the lease became forfeited for non-payment of rent, while the fact is that there was no rent due to the plaintiff, and therefore he had no right to forfeit the lease. It seems to us that under the pleadings it was error fon the court to allow the plaintiff to recover for the unpaid rent, but of this neither party is complaining. Our conclusion is that the court was fully warranted in instructing the jury that under the terms of 'the lease and the undisputed evidence the plaintiff was not entitled to recover for the forfeiture "claimed. The judgment of the district court is AEEIRMED.