{
  "id": 8551889,
  "name": "CHARLES B. PRICE v. IRVIN CONLEY",
  "name_abbreviation": "Price v. Conley",
  "decision_date": "1971-11-17",
  "docket_number": "No. 7127DC611",
  "first_page": "636",
  "last_page": "641",
  "citations": [
    {
      "type": "official",
      "cite": "12 N.C. App. 636"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T18:50:27.087613+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Morris and Graham concur."
    ],
    "parties": [
      "CHARLES B. PRICE v. IRVIN CONLEY"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nIn his charge the judge instructed the jury that the plaintiff had alleged that defendant breached the lease contract \u201cby failing to exercise his option to renew the lease.\u201d No such allegation appears in the complaint. Further, the recorded lease, copy of which was introduced in evidence, contains no option to renew. On the contrary, by its express terms the lessors \u201cagree to renew\u201d and the lessee \u201cagrees to accept\u201d the additional ten-year term which began on 10 August 1969. This gave no option to either party, but created an agreement binding upon both.\nThe judge also instructed the jury \u201cthat in cases where there is a lease with a renewal clause, nothing more appearing to be done other than to increase the amount of the rent, that if the amount of the rent is not increased at the time called for in the contract, then they have not complied with the terms of the contract.\u201d Thereafter, in the mandate portion of the charge, the judge instructed the jury as follows:\n\u201cFinally, ladies and gentlemen, the Court instructs you that if the plaintiff has satisfied you from the evidence and by its greater weight that the plaintiff and defendant had a contract, which they agreed they had, and that the defendant has failed to comply with the terms of the contract by increasing the payments on August 10, 1969, it would be your duty to answer this second issue, \u2018Yes.\u2019 Otherwise, if the plaintiff has not so satisfied you, you would answer it \u2018No.\u2019 \u201d\nAppellant\u2019s exceptions and assignments of error to the above-quoted portions of the charge must be sustained. It was misleading to refer to an \u201coption\u201d to renew the lease, when no such option existed and therefore exercise or failure to exercise a renewal option could not have been in any way involved in the litigation. Moreover, considering the charge as a whole, the judge failed properly to \u201cdeclare and explain the law arising on the evidence given in the case,\u201d as he was required to do by G.S. 1A-1, Rule 5\u00cd(a). Under the charge as given, the jury could do nothing other than to answer the second issue in the affirmative, since all of the evidence established that defendant had failed to increase the amount of the monthly payment on 10 August 1969. However, there was also uncontradicted evidence from both parties that each month from August 1969, until June 1970, defendant had paid and plaintiff had quietly accepted a check for $35.00. Further, there was evidence, though contradicted, from which the jury could have found that promptly after the lease provision calling for the increase in the monthly rental was brought to defendant\u2019s attention, he had tendered to plaintiff his check for the full amount by which he was then in arrears and had thereafter tendered to plaintiff each month a check in the increased amount as called for by the recorded lease. The court\u2019s charge to the jury is completely devoid of any explanation of the law arising on this evidence.\nA provision in a lease for termination at the option of the lessor upon breach of the lessee\u2019s obligation to pay rental is not self-executing. Such a provision may be waived by the landlord, for whose benefit it was inserted, and he may elect to treat the lease as continuing in effect. Moreover, the purpose of such a provision is not to provide a forfeiture with which to surprise an unwary tenant, but to secure the landlord in his right to receive the rental called for in the lease. \u201cProvisions for the forfeiture of a lease for nonpayment of rent, whether contractural or statutory, are considered in equity as securing the rent, and not as providing for the forfeiture of the lease where the tenant acts in good faith and pays promptly on demand.\u201d 49 Am. Jur. 2d, Landlord and Tenant, \u00a7 1034, p. 1002.\nIn the present case the plaintiff landlord, by quietly accepting monthly payments of rental in the amount of $35.00 for many months after August 1969, recognized the lease as continuing in effect and waived, not his right to collect monthly rental in the increased amount of $40.00 as called for in the lease, but his right to terminate the lease by reason of his lessee\u2019s past defaults. This waiver continued until the lessor made demand upon the lessee to pay the amount by which he was in arrears and until the lessee, after being given a reasonable opportunity to do so, should fail to make such payment. The trial court, by failing properly to declare and explain the law arising on the evi-denc\u00e9 presented in this case, committed prejudicial error entitling defendant to a new trial.\nWe note that the defendant\u2019s trial counsel made no objection to the form of the issues which were submitted to the jury and joined in a stipulation as to the type of judgment which should be entered depending upon the jury\u2019s answer to the second issue. Appellant was entitled, nevertheless, to have the issues decided by the jury under a charge from the court which correctly declared and explained the law arising on the evidence. For the errors above noted there must be a new trial, at which the case should be submitted to the jury upon such issues as shall arise upon the evidence then presented.\nFor errors in the charge, the judgment appealed from is reversed and defendant is entitled to a\nNew trial.\nJudges Morris and Graham concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Horn, West & Horn, by C. A. Horn for plaintiff appellee.",
      "Yelton & Lamb, by Robert W. Yelton for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "CHARLES B. PRICE v. IRVIN CONLEY\nNo. 7127DC611\n(Filed 17 November 1971)\n1. Landlord and Tenant \u00a7 18\u2014 default in payment of rent increase \u2014 action by landlord \u2014 instructions\nIn a lessor\u2019s action to recover possession of the leased premises on the ground that the tenant had failed to pay the $5.00 monthly increase in the rent, portions of the charge which referred to an \u201coption\u201d to renew the lease, when in fact no such option existed, was misleading and therefore erroneous.\n2. Landlord and Tenant \u00a7 18\u2014 default in payment of rent increase \u2014 action by landlord \u2014 evidence relating to waiver of default \u2014 instructions \u2014 issues . .\nIn a lessor's action to recover possession of the leased premises on the ground that the tenant had failed to pay the $5.00 monthly increase in the rent, the trial court\u2019s failure to explain and apply the law to evidence which showed (1) that the landlord continued to accept the old rent for 10 consecutive months and (2) that the lessee, upon being told of the arrears in the rent,- tendered to the landlord the full amount by which he was in arrears, which amount the landlord accepted, held reversible error, since it required the issue of breach of the lease to be answered in favor of the landlord.\n3. Rules of Civil Procedure \u00a7 51\u2014 instructions \u2014 application of law to the evidence\nThe trial judge is required to declare and explain the law arising on the evidence given in the case. G.S. 1A-1, Rule 51(a).\n4. Landlord and Tenant \u00a7 18\u2014 lessee\u2019s breach of rent obligation \u2014 waiver by landlord\nA provision in a lease providing for termination at the option of the lessor upon breach of the lessee\u2019s obligation to pay rental is not self-executing and may be waived by the lessor.\nAppeal by defendant from Mull, District Judge, 12 April 1971 Session of District Court held in Cleveland County.\nAction to recover possession of real property. In his complaint, filed 18 September 1970, plaintiff alleged that defendant was his tenant at will and that defendant had been given reasonable notice to vacate but had refused to do so. Defendant answered and alleged a recorded lease from plaintiff\u2019s predecessors in title, and in a further answer defendant alleged estoppel by reason of plaintiff\u2019s acceptance of sixteen monthly rental payments under the lease. A copy of the recorded lease, dated 26 July 1967, was introduced in evidence. By this instrument plaintiff\u2019s mother and her husband, who were then the owners, leased a store building in Shelby, N. C., then occupied by defendant, to defendant as lessee.\n\u201c . . . for a period of two more years, same beginning the 26th day of July, 1967 and ending on August 10th, 1969, at a rent of $35.00 per month. Also the lessors agree to renew lease for an additional 10 years, beginning on August 10th, 1969 and ending on August 10th, 1979, for the rent of $40.00 per month. The lessee agrees to accept said additional 10 year lease.\n\u201cShould the said monthly rental payment for any one month be as much as 15 days in arrears, the lessors shall have the right to terminate or end this lease and retake possession of the premises.\u201d\nPlaintiff testified: After he acquired title as devisee under the will of his mother, who died 5 January 1969, he went by the store each month until June 1970 and picked up a monthly rental check in the amount of $35.00. He received no $40.00 checks, and on 1 June 1970 he informed defendant \u201cthat he was eight months behind on the new rent\u201d and asked him to vacate, but defendant refused to do so. Since 1 June 1970 he had not been by the store building to pick up any checks and had received no further checks from defendant.\nDefendant testified: As a result of the lease he paid plaintiff\u2019s mother $35.00 on the first or second day of every month until she passed away. Thereafter he paid plaintiff $35.00 per month on the first or second day of every month until 1 June 1970. At the time the lease was drawn he knew that the rent was to be increased from $35.00 to $40.00 per month on 10 August 1969, but he later forgot that fact. Plaintiff never said anything about the amount of the rent until 1 June 1970, when plaintiff told defendant\u2019s son to vacate the premises. Plaintiff never told defendant directly to vacate, but did tell his son to do so. On 2 June 1970 he mailed plaintiff a check for $55.00, \u201cthe remainder he claimed I was behind in my rent.\u201d Since 1 June 1970 he had mailed plaintiff a check in the sum of $40.00 on the first or second day of each month, because plaintiff would not come and get them.\nDefendant\u2019s son testified: He worked for his father in the store, kept books, and wrote checks. He addressed and mailed the checks in the amount of $40.00 to plaintiff after 1 June 1970, and none of the letters were ever returned. He did not have a canceled check showing that $40.00 had been paid plaintiff.\nThe following issues were submitted to the jury:\n\u201c1. Did the plaintiff and the defendant have a contract for the lease of the premises as alleged in the Complaint?\n\u201cAnswer:_\n\u201c2. Did the defendant wrongfully breach said Contract as alleged in the Complaint?\n\u201cAnswer :_\u201d\nThe parties stipulated that the answer to the first issue should be in the affirmative, and that if the jury should answer the second issue \u201cyes,\u201d \u201cthen the plaintiff is entitled to possession of the premises as provided by law,\u201d but if the answer is \u201cno,\u201d \u201cthat they go ahead and proceed under the contract as prior to this date.\u201d The jury answered both issues in the affirmative. From judgment that plaintiff recover possession of the property, defendant appealed.\nHorn, West & Horn, by C. A. Horn for plaintiff appellee.\nYelton & Lamb, by Robert W. Yelton for defendant appellant."
  },
  "file_name": "0636-01",
  "first_page_order": 662,
  "last_page_order": 667
}