Stewart v. Tilson

RICHARDS, J.

This is an appeal from a judgment in favor of the plaintiffs in an action for possession of real estate. The complaint is in the usual form of an action for ejectment, the plaintiffs alleging that on July 1, 1920, and at all times thereafter they were the owners and entitled to the premises described therein; that on July 3, 1920, the defendant unlawfully and without right or title so to do entered into and upon said premises and ousted said plaintiff therefrom, and thereafter and without right has withheld and still withholds the possession of said -premises from said plaintiffs to their damage, etc. The prayer is for the restitution of said premises with damages for the withholding thereof and for the rents, issues, and profits thereof. The answer of the defendant admits that on the first day of July, 1920, the plaintiffs were the owners of the premises in question, but denies that they were then or thereafter entitled to the possession thereof, and further denies any unlawful ouster of the said plaintiffs from the said premises or any damages as the result thereof. And for a further answer the defendant alleges that he is in possession of the premises by virtue of a certain written lease thereof, the terms of which he has fully complied with by offering to pay the

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plaintiffs the money due as rent according to the terms thereof which the plaintiffs have refused to accept. He attaches said lease to his answer and makes it a part thereof. The lease is dated January 31, 1919. It describes the premises in question and purports to be for a term of five years at the yearly rent of $1,380, payable quarterly in advance. It further provides that in case any rent shall remain due for a period of more than thirty days the party of the first part may enter upon the premises and expel the party of the second part therefrom and terminate the lease. When the cause came on for trial upon the issues as thus made up the defendant offered and was permitted to file an amended answer, wherein he alleged as an additional defense that the plaintiffs had waived the provisions' of said lease relative to the payment of rent at the time specified therein and had on or about May 3, 1920, by the acceptance of a portion of certain rent then due, extended and agreed to extend the time for the defendant to make the payment of the balance of said rent so as to waive the conditions as to the forfeiture of said lease.