(concurring).
I take no issue with the factual finding of the court that plaintiff has failed to prove that the defendant had received in writing, as provided by the lease, the required notice of the violation forming the basis of this suit and it is for this reason alone that I concur in the decree.
It appears to me that this resolution of fact should end the case and that the other ruling of the court, that the lessor waived the right to insist on cancellation of the lease by accepting rent for the months of April and May after he had notified lessee of his failure to comply with the provisions of the lease in not paying the taxes, is superfluous. However, since this finding appears to be the principal ground on which the decision is pitched, I feel that it is appropriate for me to express my inability to subscribe thereto.
It is my opinion that, after notice of violation of the provisions of the lease had been given, it was perfectly proper for the lessor to accept monthly rental without waiving his right to insist upon cancellation of the lease. Surely, it cannot rightly be deduced that the acceptance of current monthly rent operated as a waiver of the lessee’s obligation to punctually pay the city and state taxes due by him. Nor do I believe that such acceptance constituted a waiver of the option given lessor to cancel the lease at any time after the expiration of the ten day period given in lessor’s notice, as provided by the contract.
I realize that the holding herein finds substantial support in the decision of Canal Realty & Improvement Co., Inc., v. Pailet, 217 La. 376, 46 So.2d 303. However, since I am presently convinced that the holding in that case is not correct, I must respectfully disagree with the similar ruling in this matter.
I concur in the decree.