Sweeney v. Garrett

2 Disney (Ohio) 601

• Court: Ohio Superior Court, Cincinnati
• Decided: December 15, 1859
• Docket: No. 10,256
• Status: Published

Opinion

Storer, J.,

delivered the opinion of the court:

We are asked to revise the proceedings in this ease at special term.

First, because the court erred in deciding.the plaintiff could avail himself of the conditions of the lease, after he had dispensed with them and waived them.

We find no such ruling in the record, and no exception appears to have been taken to the opinion of the court, if one was expressed upon the point.

The second error assigned is, that the court held a demand for the rent due need not have been made by the lessor to give him a right of entry.

The terms of the lease were regarded by the judge as conferring that right upon the lessor, and he accordingly decided the plaintiff was not required to demand payment of the rent, and this, in our opinion, is the law of the case.

There seems to be no conflict of authority on the question from Dormer’s case, 5 Co. 40, to the present time; we find the rule thus stated in 1 Bac. Abrid. 655, recognized in Woodfall’s Landlord and Tenant, 266; Goodright v. Cator, 2 Douglas, 477; and Harris v. Masters, 2 B. & Cress. 490.

The third error assigned is but the statement of the second in another form, and the opinion we have expressed upon that is equally applicable to this. As to the fourth, that parol evidence was admitted to explain the lease, we find no such statement in the bill of exceptions, and must disregard this assignment of error accordingly.

As to the fifth, that the court erred in refusing to decide that a former action then pending, was a bar to this proceeding.

It does not appear by the record that any such action was pending. No proof of the fact is exhibited in the bill of exceptions, but, on the contrary, it is there stated that all the testimony offered on the trial was that of the parties themselves, who were both sworn.

We are not, therefore, required to consider this exception. If, however, we were permitted to refer to the answer in which the pendency of the former action is set forth, we find there is no averment, that the suit was for the same cause; and it is certain a plea would be bad unless such an allegation was made. It can not be claimed that a former suit pending to recover the possession, because of a prior forfeiture, can affect the right to the same remedy for a subsequent forfeiture. On the whole case, we affirm the judgment.

Judgment affirmed.