Whistle Co. v. Schueler , 1 Ohio Law. Abs. 439 ( 1923 )

BY THE COURT.

Epitomized Opinion

Appeal from the Franklin County Common Pleas; action brought to enjoin defendant, the owner of the premises, from enforcing an alleged forfeiture of lease, on the grounds, alleged in pleadings, of (1) Non-payment of rent. (2) Alterations made in violation of the terms of the lease. The rent was due Dec. 10, but overlooked and tendered Dec. 15. Payment of subsequent rent, with interest, was tendered, strictly according to the lease, each month. The Court of Appeals held as follows, sustaining Judge E. B. Kinkead, the trial judge:

1. It is well settled that a lease will not be forfeited for the non-payment of rent, where the same is thereafter tendered with interest, the theory being that compensation can then be made for the particular sum, and that equity will, upon its tender thereof, relieve against the forfeiture.

2. The testimony fairly shows that the owner knew of making the alterations, made no objection thereto, but acquiesced therein, during their construction, as it was his duty to do promptly, when he saw the plaintiff expending the money. His failure to do so constituted an estoppel.

3.It appearing that, since the decision below, the plaintiff has entirely removed the alternations, and restored the building, and a court of equity will not decree a forfeiture because of them.