{ "id": 1553231, "name": "Sells v. Brewer", "name_abbreviation": "Sells v. Brewer", "decision_date": "1916-07-03", "docket_number": "", "first_page": "108", "last_page": "111", "citations": [ { "type": "official", "cite": "125 Ark. 108" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "41 Ark. 532", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896220 ], "opinion_index": -1, "case_paths": [ "/ark/41/0532-01" ] }, { "cite": "65 Ark. 521", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 609340 ], "opinion_index": -1, "case_paths": [ "/ark/65/0521-01" ] }, { "cite": "100 Ark. 565", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312268 ], "opinion_index": 0, "case_paths": [ "/ark/100/0565-01" ] }, { "cite": "41 Ark. 532", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896220 ], "opinion_index": 0, "case_paths": [ "/ark/41/0532-01" ] }, { "cite": "65 Ark. 521", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 609340 ], "opinion_index": 0, "case_paths": [ "/ark/65/0521-01" ] } ], "analysis": { "cardinality": 333, "char_count": 5299, "ocr_confidence": 0.455, "pagerank": { "raw": 1.7011811587118626e-07, "percentile": 0.7008007030525718 }, "sha256": "2e0355a04d44eb27df9bcd328d49b249496da56dd73d1e29dfa7a3760bdc4361", "simhash": "1:2123adc80e7b8bc9", "word_count": 926 }, "last_updated": "2023-07-14T16:40:14.978358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Kirby, J. dissents." ], "parties": [ "Sells v. Brewer." ], "opinions": [ { "text": "Smith, J.\nAppellant instituted an action of unlawful detainer against appellee to recover the possession of a certain tract of land which she had leased him for the period beginning June 1, 1908, and ending May 31, 1918. The rent was $30 per year, payable quarterly, and rent for one quarter was due on September 1st, but was not paid at that time. The lease contained the following clause:\n\u201cIt is further agreed that the rent herein above provided for is to be paid quarterly, and if any quarter\u2019s rent shall remain due and unpaid, after due date thereof, then and in that event party of the first part may declare this lease at an end, and take immediate possession of this property, together with the\u2019appurtenances.\u201d\nOn September 5, 1913, the rent remaining unpaid, the appellant served on appellee the following notice:\n\u201cYou are notified that I have in default of your payment of rent cancelled your lease dated June 2, 1908, and demand possession of the premises.\u201d\nThis action followed this notice.\nAppellee denied the allegations of the complaint that appellant was entitled to the possession of the land, or that the same was unlawfully detained. A tender of the rent was made on September 13th.\nThere was conflicting evidence in regard to appellant\u2019s custom in the collection of the rent, and there was evidence on appellee\u2019s behalf which tended to show that appellant would not .insist on the forfeiture clause because of a failure to pay rent on the day it was due. This evidence was in conflict with that of appellant on the subject. However, the question of waiver was not submitted to the jury, and we must, therefore, treat that question as not having been passed upon by the jury. Upon the contrary, the court gave, over appellant\u2019s objection, the following instruction:\n\u201cYou are instructed that if you find from the evidence that the rent due for the property in question was tendered within three days after demand for possession was made by the plaintiff, then it is your duty to find your verdict for the defendant.\u201d\n-It is said this instruction is based upon the opinion of this court in the case of Geary v. Parker, 65 Ark. 521. It will be observed, however, that the opinion in that case mentions the fact that \u201cthere was no condition of forfeiture in the lease for non-payment.\u201d But in- this case we have this express condition, and the authorities recognize the right of parties to contract for a forfeiture. 2 Taylor, Landlord & Tenant, Sec. 489.\nIn 24 Cyc., page 1352, it is said:\n\u201cWhile a provision in a lease for a forfeiture or reentry is necessary to authorize the lessor to terminate the tenancy, on the failure to pay rent, except where the statute otherwise provides, yet when the lease contains such ' a provision, the lessor may proceed to end the lease on the breach of such covenant, notwithstanding the failure to pay was not wilful. Of course the landlord cannot terminate the lease until the expiration of the whole of the day on which the rent is payable; and if the lease provides that the rent shall not be payable until a certain time after it accrues, he has no right to re-enter until the expiration of that time.\u201d\nWhile the cases on the subject hold that the landlord who desires to enforce the forfeiture of the lease for the non-payment of the rent must bring himself strictly within the provisions of the contract which gives him this right, still the validity of the stipulation and the right to enforce it is recognized when he has done so.\nIn the recent case of Williams v. Shaver, 100 Ark. 565, it was said: \u201cOrdinarily, where a forfeiture is desired in a contract, it is by the express terms thereof provided that a forfeiture may be declared in event of some breach thereof. This is especially true of leases. The forfeiture of the term of a lease is usually provided for in the contract by express words, and generally occurs upon or in consequence of a breach of some agreement therein stipulated.\u201d\nThe opinion in that ease quoted from both the majority and the dissenting opinions in the case of Buckner v. Warren, 41 Ark. 532, in both of which opinions, as shown by the quotations there made, non-payment of rent was recognized as' a ground for forfeiture of a lease when it was so expressly provided.\nThe court should, therefore, have\" given effect to the language of the contract and under the evidence in the case should have submitted the cause to the jury upon the question of waiver.\nFor the error indicated the judgment will be reversed and the cause remanded.\nKirby, J. dissents.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "H. F. Roleson, for appellant." ], "corrections": "", "head_matter": "Sells v. Brewer.\nOpinion delivered July 3, 1916.\nLeases \u2014 forfeiture\u2014non-payment of rent- \u2014 stipulation.\u2014Where expressly stipulated in the contract of lease, non-payment of rent \u25a0 will work a forfeiture of the lease.\nAppeal from Lee Circuit Court; J. M. Jackson, Judge;\nreversed.\nH. F. Roleson, for appellant.\nThe trial court misconstrued the case of Geary v. Parker, 65 Ark. 521. There was no condition of forfeiture in that case and it was based on a construction of a statute. Here the rent was not paid when due and the lease declared forfeited and notice to quit served before the tender of rent. The contract is unambiguous and the contract was forfeited. 41 Ark. 532; 57 Id. 301; 24 Cyc. 1352, 1339. The court erred in its instructions. Supra." }, "file_name": "0108-01", "first_page_order": 134, "last_page_order": 137 }