The Texas Improvement Company, a corporation, Instituted this suit against L. M. Crawford, in the form of trespass to try title to, for possession of, and for rents due under contract of lease for a certain theater building in El Paso. Defendant answered by plea of not guilty; that he held said property by virtue of a written lease for a period of 10 years, which began September, 1914, at a rental for the first five years of $300 per month; that he had paid and tendered payment of all rents due under the contract, etc. Plaintiff, in reply, says that the lease contains a forfeiture clause for failure to pay rent; that defendant had not paid his rents in accordance with the provisions of the lease, and for such failure plaintiff exercised its option to cancel same.
The case was submitted upon special issues, and upon the answers thereto by the jury judgment was entered for plaintiff. For answer to the interrogatories propounded by the court, the jury found: First, that defendant's failure to pay the rent as stipulated in the lease was willful and persistent; second, that the plaintiff by its conduct led defendant to believe that it would not forfeit his lease for a failure to pay the rent in accordance with the terms of the lease; third, defendant believed in good faith that plaintiff would not cancel his lease without notice of its intention to do so; fourth, that he was led to this belief because of the conduct of plaintiff; fifth, that defendant was negligent in having such belief; sixth, that the defendant would have paid the December and January rent before they became delinquent but for such belief; seventh, that plaintiff did not notify defendant, prior to filing this suit, that it would cancel the lease for failure to pay rent in accordance with the terms of the lease; eighth, that plaintiff canceled the lease because of failure to pay December and January rents; ninth, that the conduct of plaintiff was such that under the circumstances it was natural and probable that the defendant would believe that the plaintiff would not forfeit his lease for the failure to pay rent without first notifying him.
Findings of Facts. Appellee, being the owner of the Texas Street Theater, leased it to appellant for a period of 10 years, to begin September 1, 1914; the rental to be $300 per month for five years, and $350 per month for the second five years, payable monthly in advance, without demand. The lease contained the provision that "should any rent remain unpaid for as much as fifteen days after the same shall become due, it is agreed that, without demand therefor, * * * it shall be lawful for the lessor * * * to re-enter the premises, * * * and thereupon this lease shall cease and determine * * * and be utterly void."
Appellant testified:
"I have been behind with my rents the past year a number of times, and Mr. Marr (agent *Page 197 of the company) has urged me to pay the rent, that they would probably have to bring suit, but he never appealed in his life that I didn't do the best I could. I made my excuses that my rent had been held up here for three years on the Crawford, and that we had other obligations due us that we could not collect. They were glad to have me as a tenant and I kept digging. * * * I do not deny that the board of directors of the Texas Theater Company instructed me in September, 1915, unless I took care of the back rents promptly, they would institute suit. At that time I was very much discouraged, and very much in the notion of giving it up. Mr. Marr and Mr. Bassett were willing to wait until October 28th to get the rent paid. I guess I paid it then. I don't remember the dates I paid the rent. I don't remember how much I was due at that time. * * * I don't deny that I was slow pay, but I have always paid. I don't remember when I paid my rent on time. * * * I knew that taxes were coming due in November, December, and January, and I think, when most of his letters were written, I got him some money. I didn't always pay him in full, but I would respond either right then or as quick as I could. * * * I do not deny that he wrote he had to pay out something like $2,000 the 1st of January. * * * I know we paid the rent, but we have been slow. Circumstances over which I had no control — it was very largely because I did not have the money. I could have gone and mortgaged property and got the money, probably, but I have done a good deal like other people have done to me. It was hard to get the money; business has been bad; our tenants have been slow. I think I am familiar with the lease; I have read it. I am familiar with the part that the lessor may terminate the lease by paying one year's rent. I did not want the owners to become dissatisfied with — and it was not my purpose to delay the rent to make the owners pay me one year's rent to get out. I never was advised either by letter or verbally, at any time, prior to the 8th of February, 1916, that the Texas Improvement Company would seek to forfeit the lease. I did not understand that if suit was brought it would be for cancellation of the lease. I understood it would be for rent, and treated it as such. They always acted as if they wanted me to keep the theater. They intimated that they did not want it."
This suit was filed February 8, 1916. At that time rents were past due for December, 1915, January, 1916, and February, 1916. The February rent, however, was not subject to the default clause until the 15th. After the suit was filed, about February 12th, a check for $600 was delivered to Marr, then agent for appellee. This was returned to appellant, and on the 18th of February was tendered to and received by the attorney for appellee as December and January rents.
By assignments 1, 2, 8, 9, 10, 11, 12, 13, 14, and 15 appellant urges that the judgment should have been for him. Same will be disposed of by a discussion of the several propositions thereunder.
The first and most important question presented by these assignments and propositions is, Should the appellant be relieved from the forfeiture clause in the contract under the facts of this particular case? Where the provision in the lease is merely to enforce prompt payment of money, and if interest will compensate for the want of prompt payment, it will permit the payment to be made, and the forfeiture set aside, unless the breach of the covenant has been willful or the neglect so culpable as to amount to the same thing. Creamery Dairy Co. v. Electric Park Co.,138 S.W. 1106. See, also, note 69 L.R.A. p. 833, for general discussion.
Appellant has confessed his' neglect, and the attendant circumstances in evidence are amply sufficient to support the finding of the jury to that effect.
This disposes of the third, fourth, and fifth, which urge that the answer of the jury that "the failure to pay the rent was willful and persistent" is contrary to the great preponderance of the evidence.
Appellant further urges that the court should have instructed a verdict for the defendant for the reason that he having paid the rent for January and February to plaintiff's agent, and the money having been retained for several days without objection, it was an acceptance and waiver of right to forfeit. That the lessor accepted the rent due for the premises after taking proper steps — filing suit to forfeit the lease for cause — is not a waiver of his right to repossess the premises unless the facts show an intention to waive. Moses v. Loomis, 156 Ill. 392,40 N.E. 952, 47 Am. St. Rep. 194. Defendant was several times notified that unless he paid his rent promptly suit would be brought. And the only thing in this record which could have been considered by the lessee as a cause to think the lessor would not enforce his right to forfeit is the mere fact that the lessor had been very indulgent in allowing rents to become overdue, and the weight of authority is that this is not proof of an election to waive. Jones, Landlord Tenant, § 498.
The sixth is that the finding of the jury that defendant was negligent in believing that plaintiff would not forfeit the lease without notice is contrary to the preponderance of the evidence. The proposition is:
"It appearing from the undisputed evidence that appellant and appellee, by their course of dealing with reference to the payment and receipt of the rent for the Texas Grand Theater, had acted without reference to the clause in said lease providing for a forfeiture of the leasehold for failure to pay rent as it became due for a period of over two years, and at no time during said period had the appellee, by word or act, manifested that it would in fact insist on the strict compliance with the terms of said lease, and that it would declare a forfeiture for failure to pay rent as it became due without first notifying appellant, and the belief of appellant that appellee would not cancel his lease for failure to pay rent in accordance with the terms of the lease without first notifying appellant of its intention to do so was such a belief as an ordinarily prudent person would exercise under the same or similar circumstances, and therefore it was not negligence on his part to have such belief, and the answer of the jury to question `D' is without evidence to support it."
The answer is that the mere fact that the lessor is lenient or indulgent is not proof of election to waive right to forfeit, and *Page 198 likewise is not proof that the forfeit would not be taken without notice, especially in a case like this, where the lease provides that it may be done without notice. Jones, Landlord Tenant, § 499; O'Connor v. Timmermann, 85 Neb. 422; 123 N.W. 443, 24 L.R.A. (N. S.) 1063, 133 Am. St. Rep. 668.
The seventh is that the court erred in rendering judgment upon the answers of the jury because they are conflicting, in that the finding that the defendant was negligent in believing that the plaintiff would not forfeit without notice is in conflict with findings "second," "fourth," and "ninth," above quoted. In view of the holdings above, that the evidence is sufficient to sustain the finding of the jury that the failure of appellant to comply with the provisions of the contract in payment of rents was willful and persistent, and that this was sufficient cause to forfeit the lease, and in view of the further finding that the facts in the record do not constitute proof of intent to waive its right to forfeit, the effect is to hold that there are no facts in the record upon which to base the findings charged to be conflicting.
The seventeenth urges that the matters shown by the following bill of exception constitute reversible error:
"Be it remembered that on the trial of the above styled and numbered cause, after the jury had retired to consider of its verdict upon the issues submitted by the court, and after the jury had been deliberating some three or four hours in the jury room, the jury sent into court the following request: `It is the wish of the jury that Crawford be allowed to keep his lease, but pay all back rent, court costs, attorney's fees, and such like. Now comes the jury, and asks instructions how to answer the questions to arrive at that verdict.' And the court sent the following instruction to the jury: `Gentlemen: Your question cannot be answered by the court;' and then left the room after said communication between the court and the jury, and the jury returned into court the verdict upon which the judgment in this cause is based, and the defendant excepted to the action of the court in overruling the nineteenth ground of defendant's amended motion for a new trial, for the reason that by reason of said facts it was evident that the jury did not follow the instructions of the court," etc.
The proposition is:
"It being apparent from the answers of the jury to the issues propounded, and from the communication sent by the jury to the court, that the jury intended to answer the questions propounded to it by the court in such a manner as to give appellant the possession of the Texas Grand Theater property under his lease, and give the appellee his rents, costs, and attorney's fees, the court erred in rendering judgment on the findings of the jury for appellee for the possession of said property."
It is apparent that appellant would have his verdict regardless of what the jury believed the facts to be upon which to base it. They have found the fact to exist which constitutes the basis for appellee's judgment, yet forsooth, because the jury said they wanted to find for the appellant, counsel would have us set it aside, whether the jury believed the facts justified it or not; in fact, when the jury find that the facts do not justify it. This is a forceful demonstration of the reason for submitting causes upon special issues.
The eighteenth is without merit.
Finding no error in the record, the cause is affirmed.