My sympathies are with the respondent Daniels, and I should like to join with the majority in an affirmance, but I am much concerned lest we let a hard case make some bad law.
By the majority opinion, we add two new propositions to the law of landlord and tenant, and I am not in accord with either of them.
First: To the rule that the acceptance of rent with knowledge of the breach of covenants on which a forfeiture might be predicated is a waiver of the right of forfeiture for such breaches, we now add: even though there be a continuing breachof a continuing covenant, unless the breach continues for somesubstantial time subsequent to the acceptance of the rent.
There is a generally recognized exception to the rule that the acceptance of rent with knowledge of the breach of covenants is a waiver of the right of forfeiture for such breaches. The exception applies when the covenants breached are continuing covenants and the breaches are *Page 645 continuing breaches. The majority recognizes this exception but says that the lessor must wait until the old breaches have continued beyond the time of the acceptance of the rent. The question which the majority does not attempt to determine is how long the old breaches must continue.
Among others, we have a covenant in the lease here under consideration to keep the premises "in good order, condition and repair." The authorities agree that a covenant to keep in repair is the best illustration of a continuing covenant, and that failure to keep in repair is a continuing breach. The majority says that, because the rent was paid one evening and notice to remedy the breach of the covenant to repair (among others) was given the following morning, the lessor was not entitled to insist that the breach of the covenant to keep in repair be remedied within ten days. Should he have waited two days, three days, a week, or ten days after accepting the rent before giving ten days' notice to remedy the breach of the covenant to repair or to surrender possession of the premises? Unless we recognize that a continuing breach has continued when a second has passed after the payment of rent, we leave it to be determined in each individual case when a continuing breach begins to continue after the payment of rent.
It is true that in this case the interval between the payment of rent and the serving of notice that the continuing breach must be remedied was very brief. The reasoning that would say that it was not sufficient is like unto that of the lady who sought to excuse the fact that she had given birth to an illegitimate child by saying that, after all, it was such a little one. The fact that the breach of the covenant to repair continued after the rent was paid, seems to me apparent and inescapable.
Second: To the rule that the acceptance of rent with knowledge of the breach of covenants on which a forfeiture might be predicated is a waiver of the right of forfeiture for such breaches, we now add: and it is likewise a waiver of the right,under the unlawful detainer statute (Rem. Rev. Stat., § 812(4) [P.P.C. § 55-5]), to give ten days' notice to *Page 646 keep or perform a continuing covenant of which there is acontinuing breach.
It must be noted that the continuing breach of a continuing covenant existed subsequent to the payment of the rent in this case, and that the lessor gave the lessee, by the notice he served under the provisions of Rem. Rev. Stat., § 812 (4), ten days within which to remedy the breaches or to surrender possession of the premises. The breaches had continued during the interval of time, however short, between payment of the rent and the serving of the statutory notice or demand that they be remedied. They could have been remedied at any time within that ten-day period. I see no reason why a lessor may not insist, after an acceptance of rent, that the continuing covenants of a lease, such as a covenant to keep in repair, be enforced, or why he may not utilize the provisions of the unlawful detainer statute to secure that enforcement.
The judgment of dismissal with prejudice should be reversed, with direction to enter judgment in favor of the appellants. If there are such equities as to prevent a forfeiture, the respondent could then avail himself of the provisions of Rem. Rev. Stat., § 830 [P.P.C. § 55-41].
January 18, 1949. Petition for rehearing denied. *Page 647