Shoemaker v. Pioneer Investments

Utah Supreme Court

Shoemaker v. Pioneer Investments

381 P.2d 735, 14 Utah 2d 250, 1963 Utah LEXIS 192

CourtUtah Supreme Court

DecidedMay 24, 1963

Docket9765

StatusPublished

Cited by7 cases

This text of 381 P.2d 735 (Shoemaker v. Pioneer Investments) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shoemaker v. Pioneer Investments, 381 P.2d 735, 14 Utah 2d 250, 1963 Utah LEXIS 192 (Utah 1963).

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Opinions

CALLISTER, Justice.

Plaintiff brought an action to recover possession of certain real property, damages for unlawful detention, and unpaid rent. The lower court gave plaintiff - judgment and dismissed defendant’s counterclaim. Defendant appeals.

On December 1, 19SS, plaintiff entered into a written lease of certain premises owned by her and located in Salt- Lake City. The lease was for a term of five years at a rental of $100.00 per month. Defendant went into possession of the property on or about August 27, 19S9, by virtue of an assignment of the lease from the original lessees.

The lease required the lessee not only to pay the monthly rental but also to pay the taxes and insurance premiums. It also contained the following provision:

“4. Provided, always, and these presents are upon this condition, that if the lessees or their representatives or assigns shall neglect or fail to perform and observe any covenant herein contained which on the lessees’ part is to be performed, * * * then in any such case, the lessor, or those having her estate in the premises, lawfully may, immediately or at any time thereafter, enter into and upon the demised premises or any part thereof in the name of the whole, and repossess the same as of their former estate, and thereupon this demise shall absolutely determine, but without prejudice to any remedies which might otherwise . b.e [252]*252used by the lessor for arrears of rent or any breach of the lessees’ covenants herein contained.”

Defendant failed to pay the 1959 taxes or rent for December, 1959, and January, 1960. Thereupon, plaintiff caused to be served upon the defendant a “Notice of Termination of Lease” which required defendant to pay the taxes and past due rent or vacate the premises. Defendant, thereupon paid the past due rent, but not the taxes. Defendant’s check, given in payment for this rent was returned twice by the bank upon which it was drawn, marked “Return to Maker”.

Defendant then failed to pay the rents for February and March. On March 24, 1960, plaintiff directed a letter to defendant terminating the lease and requesting possession of the premises. Thereafter, on March 28, 1960, defendant tendered a check in the amount of $300.00 in payment of the February, March and April rents due, which tender the plaintiff refused. Plaintiff also refused tendered monthly rental payments for all the months from February through December, 1960.

In view of the foregoing events, it is difficult, if not impossible, to understand defendant’s claim that plaintiff had waived her rights to prompt payment of the rents and “had contributed to appellant’s habit of failure to pay the monthly rental promptly”. This assertion is without merit.

On April 22, 1960, plaintiff caused to be served upon defendant another notice to vacate and, on June 7, 1960, initiated the present suit. I-Iowever, defendant continued in possession until March 1, 1961, when it abandoned the premises. .

The lower court found that the letter of March 24, 1960, terminated the lease and defendant assigns this as error. This assignment is also without merit. Under the provisions of the lease, above quoted, the plaintiff had the right, upon default, to re-enter, take possession of the property, and terminate the lease. By this provision, defendant waived the right to a demand for payment of the rent before termination could be declared.¹ This being the case, the lower court was correct in holding the lease to have been terminated on March 24, 1960, which made the defendant a tenant at will, and the plaintiff properly proceeded to regain possession by the procedure set forth in Section 78-36-3(2), U.C.A. 1953.²

Defendant on November 21, 1960, endeavored to exercise an option to purchase the premises in accordance with a provision in the lease providing for such a privilege. The refusal of plaintiff to recognize the option is the subject matter [253]*253of defendant's counterclaim. The lower court, having found that the lease had been terminated some eight months prior, properly dismissed the counterclaim.

Affirmed. Costs to plaintiff.

HENRIOD, C. J., .and McDONOUGH and WADE, JJ., concur.

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CALLISTER, Justice.

Plaintiff brought an action to recover possession of certain real property, damages for unlawful detention, and unpaid rent. The lower court gave plaintiff - judgment and dismissed defendant’s counterclaim. Defendant appeals.

On December 1, 19SS, plaintiff entered into a written lease of certain premises owned by her and located in Salt- Lake City. The lease was for a term of five years at a rental of $100.00 per month. Defendant went into possession of the property on or about August 27, 19S9, by virtue of an assignment of the lease from the original lessees.

The lease required the lessee not only to pay the monthly rental but also to pay the taxes and insurance premiums. It also contained the following provision:

“4. Provided, always, and these presents are upon this condition, that if the lessees or their representatives or assigns shall neglect or fail to perform and observe any covenant herein contained which on the lessees’ part is to be performed, * * * then in any such case, the lessor, or those having her estate in the premises, lawfully may, immediately or at any time thereafter, enter into and upon the demised premises or any part thereof in the name of the whole, and repossess the same as of their former estate, and thereupon this demise shall absolutely determine, but without prejudice to any remedies which might otherwise . b.e [252]*252used by the lessor for arrears of rent or any breach of the lessees’ covenants herein contained.”

Defendant failed to pay the 1959 taxes or rent for December, 1959, and January, 1960. Thereupon, plaintiff caused to be served upon the defendant a “Notice of Termination of Lease” which required defendant to pay the taxes and past due rent or vacate the premises. Defendant, thereupon paid the past due rent, but not the taxes. Defendant’s check, given in payment for this rent was returned twice by the bank upon which it was drawn, marked “Return to Maker”.

Defendant then failed to pay the rents for February and March. On March 24, 1960, plaintiff directed a letter to defendant terminating the lease and requesting possession of the premises. Thereafter, on March 28, 1960, defendant tendered a check in the amount of $300.00 in payment of the February, March and April rents due, which tender the plaintiff refused. Plaintiff also refused tendered monthly rental payments for all the months from February through December, 1960.

In view of the foregoing events, it is difficult, if not impossible, to understand defendant’s claim that plaintiff had waived her rights to prompt payment of the rents and “had contributed to appellant’s habit of failure to pay the monthly rental promptly”. This assertion is without merit.

On April 22, 1960, plaintiff caused to be served upon defendant another notice to vacate and, on June 7, 1960, initiated the present suit. I-Iowever, defendant continued in possession until March 1, 1961, when it abandoned the premises. .

The lower court found that the letter of March 24, 1960, terminated the lease and defendant assigns this as error. This assignment is also without merit. Under the provisions of the lease, above quoted, the plaintiff had the right, upon default, to re-enter, take possession of the property, and terminate the lease. By this provision, defendant waived the right to a demand for payment of the rent before termination could be declared.¹ This being the case, the lower court was correct in holding the lease to have been terminated on March 24, 1960, which made the defendant a tenant at will, and the plaintiff properly proceeded to regain possession by the procedure set forth in Section 78-36-3(2), U.C.A. 1953.²

Defendant on November 21, 1960, endeavored to exercise an option to purchase the premises in accordance with a provision in the lease providing for such a privilege. The refusal of plaintiff to recognize the option is the subject matter [253]*253of defendant's counterclaim. The lower court, having found that the lease had been terminated some eight months prior, properly dismissed the counterclaim.

Affirmed. Costs to plaintiff.

HENRIOD, C. J., .and McDONOUGH and WADE, JJ., concur.

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381 P.2d 735, 14 Utah 2d 250, 1963 Utah LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shoemaker-v-pioneer-investments-utah-1963.

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