ON REHEARING.
1. When the lessor each month accepts the payment of the rent at a time subsequent to that fixed by the contract of lease and recited in the notes, and such payments are so made by virtue of separate agreements each month, held that such renewed and separate agreements between the lessor and the lessee is not such conduct in “their course of dealing” with each other as will modify the terms of the contract of lease or waive its conditions, expressly or impliedly.
2. The lessee’s failure, to pay rent authorizes an affidavit of “good reason to believe .that the property will be removed from thé premises. 8 A. 366, 374, 481.
ESTOPINAL, J.Our second examination of the record in this case, and a careful analysis of the testimony, has convinced us that our former opinion is erroneous and that the judgment appealed front is correct and should remain undisturbed. The Co art in its original opinion was controled and influenced in a great measure by the fact that the notes themsevles, which are part of the record, showing that they had been paid on the 16th of each month, save one that was paid on the 13th day of the month and another on the 17th day, was strongly indicative of an agreement or a consent on plaintiff’s part, as contended by the defendant, to extend the time of payment to the 16th of the month. We are now satisfied, however, that there was no fixed or permanent rule established between the partías. A proposition that requires to be renewed and is shown to have been renewed each month, cannot be said to be, or to have become a rule of conduct between the parties. We find it affirmatively shown that the defendant was each and every month prior to the 16th of each month, notified either in writing, verbally or by telephone, to pay her rent notes, and she would then fix a time at which time she did pay.
We believe the statement of Mrs. Grinage to 'the effect that *434she told plaintiff that “it would be more convenient for her to pay her rent on the 16th;” but the consent of the latter to an extension to that date is not established. Plaintiff denies that he ever agreed to the proposition or that it was ever made. The fact, fully proved, that demands for payments were made prior to the 16th each month negatives at least defendant’s contention that plaintiff agreed to the extension.
June 28th, 1907.Defendant, as had been done each month by plaintiff, was called upon repeatedly to pay the rent note for the month of March, 1906, due on the first day thereof, but the defendant, it is' shown, failed to do as she had done the preceding months when notified to pay, i. e., fix a time when she would pay, but she refused to pay at all.
Hence it was, that the plaintiff adopted the steps now attacked by defendant. The issuance of the writ of provisional seizure must be maintained. True the writ issued solely 011 the oath of plaintiff, among other things necessary, “that he has good reason to believe that the defendant will remove the furniture and other property, etc.,” no other proof of that fact being made or offered. It does not appear to have been incumbent on plaintiff to do so under the circumstances of this case. The only thing that in any way tends to negative plaintiff’s allegations “that he has reason to believe that defendant will remove the furniture, etc.,” is the fact, shown by the record, that the defendant had some thirty or forty boarders in the leased premises at the time of he seizure, but this fact does not appear to have been brought out for the purpose of showing the falsity of the oath taken by plaintiff. At any rate we do not think that that character of proof was offered which required plaintiff to fortify ‘his oath by proof of its truth. 31 A. 187.
The conclusion reached by us is that the rent was due. This is sufficient to authorize an affidavit of “good reason to believe that the property will be removed from the premises.”
8 A. 366, 374, 481.
It is, therefore, ordered, adjudged and decreed that the decree heretofore rendered in 'this case be set aside and it is now ordered that the judgment of the District Court be and it is affirmed.