Morris Wilson v. De Wolf , 11 Tex. Civ. App. 701 ( 1895 )

July 14, 1893, appellee leased from appellants a hotel in the town of Seymour till the first day of May, 1895, paying $50 cash and agreeing to pay $100 on the first day of each month thereafter, and also agreeing to keep a first-class hotel. The lease further provided: "On failing to do either, this contract shall cease and determine, and the party of the first part (lessors) shall have the right to re-enter and take possession of the same, which the said party of the second part hereby agrees on such condition to surrender."

The lessee made default in the first deferred payment, and left the premises; whereupon the hotel furniture was distrained, and this suit brought for the first year's rent, less the $50 paid. The court gave judgment for one month's rent, but denied a recovery for the rest, upon the ground that, under the contract, the defendant had the right to refuse to pay the rent due on the first of any month, and terminate the lease, without being liable for rent thereafter to accrue.

To this construction of the contract we cannot assent. Where a lease contract contains a proviso that on nonpayment of rent the term shall cease, the lessor, and not the lessee, has the elective right of determining it upon breach made. The principle that no man is permitted to take advantage of his own wrong, prevents the lessee from doing so. For a collection of the elementary authorities, as well as an able review of the English and American cases on the subject, see the opinion of the Supreme Court of Pennsylvania in the case of Willis v. Gas Co., 5 Law Rep. Ann., 603. See, also, Brady v. Nagle (Texas Civ. App.), 29 S.W. Rep., 943, quite in point.

Therefore, upon the court's findings of fact, together with our conclusion from the statement of facts, that the lessors derived no revenue from the hotel during the period for which rents were claimed, the judgment is reversed and here rendered for appellants for the $1150 sued for, with foreclosure of the landlord's lien on the property set out in the judgment so reversed.

Reversed and rendered.