
    Charles F. Claiborne, Judge.
    S. S. ROSENTHAL VS. G. W. PRUSTMAN, Appellant.
    No. 8392
    October 31st, 1921.
    
      
    
   S. s. ROSENTHAL VS. <}. f. PRUTSMAN, Appellant.

No. 8392,

CHARLES F. CLAIBORNE, JUDGE.

This is a suit by a lessor against the lessee for can-callation of a lease for making another use of the property than that specified -oa- the lease.

Petitioner alleges that by an act under private signature he leased to the defendant Prutsman the upper duplex apartment No. 8838 St. Charles Avenue; that by said lease it was provided that «

"the premises herein leased are to be used for the following purposes, Dwelling x x x; Lessee is obligated to make no x xjx use of the leased premises for a purpose other, than^tipulated herein; x x x should the lessee, in any manner, violate any of the conditions of this lease, the lessor herSby expressly reserves to himself the right of cancelling said lease, without putting the lessee in default; the lessee hereby assenting thereto and herein waiving all legal notices to vacate" x x x;

that in violation of said lease the wife of the defendant is, and for some times past has been, conducting regularly in the said leased premises the business or profession of Christian Science practioner or healer for compensation, and that her patients, at her invitation, customarily and fequently resort to the said leased premises for treatment; all to the knowledge of the said Prutsman and with his approval and consent- and by his instigation; that such use of said premises constitutes a violation of the said lease which under the law and under the stipulations of the said lease, entitles your petitioner to the cancellation thereof. Plaintiff prays for judgment condemning the defendant to vacate the leased premises.

The defendant admitted the lease, and further answering admitted ,

"that Mrs. Pr”tsman. his wife, receives in their residence, among other visitors, friends who, with her, believe in "Christian Science" and that she has in the past and does now, when desired by the callers, administer treatment to them, sometimes for eompensation and sometimes without, but he denies that her action in so doing is a violation of the lease in any particular, end avers that it would be a violation of Article I Section 4 of the Bill of Eights of the Constitution of the State of Louisiana to attempt to deny to your respondent or his wife the right to practice "Christian Science" or the Art of Healing, which is but the practice of her religion or Christian faith".

Defendant prayed that plaintiff’s petition be dismissed.

There was judgnent for the plaintiff and defendant has appealed.

There is no allegation that the practices of the defendant caused damage or injury or a nuisance, Testimony on that subject was excluded on plaintiff's objection.

The burden of proof is upon the plaintiff to show a clear case of violation of the lease. The lessee must be given the benefit of any doubt. The lessor, like the vendor, must explain himself clearly respecting the extent of his obligations; any obscure or. ambiguous clause is construed against him. C. C. 2474 (2449); 105 La. 294 (303); 30 A. 255; 30 Dalloz Rep. Leg. p 295; p 313 147; 1 Domat p 209 5 10; 25 Laurent p 110 $ 99; 3 Duver-gier p 23 § 26; 18 Baudry-L^c p 28 47; 1 Guillonard p 105¿85; 1 Pothier Obligatus p 67.

"There is a familiar canon of construction that all contracts, including leases of every description shall be most strongly construed against the grantor, and that if there be any doubt or uncertainty as to the meaning of any such lease it shall be construed most strongly in favor of the grantee". 24 Cyc 915 (c).

It is also general law that forfeiture of contracts are not favored. In the case of Scibett-a vs Marciante Mo. 7974 this Court said:

"Forfeiture of contracts or leases are not encouraged by the Courts, and will be enforced only when the rig^it thereto is clear beyond a doubt both of fact and of law".

This opinion was in pursuance of the jurisprudence of this State. 6 A. 279, 566; 12 A. 823; 17 A. 321; 21 A. 21,23; 49 A. 1549; 50 A. 379 (384); 1 Baudry-Lac p 404 772.

"Forfeiture by acts of the parties to a lease x x x because of a breach of a covenant or condition or wrongful act of the tenant are not favored by the Courts x x and a stipulation or covenant permitting a forfeiture before the lease would otherwise terminate will be construed most strongly against the lessor". 24 Cyc p 1347 (b); 18 A. & E. E. L. ? 371, 378.

The right of a lessor to dissolve a lease for putting the premises to a use other than the one intended or specified in the lease is not absolute; it is left to the discretion of the Court. 39 A.769; 120 La. 730; 30 Dalloz Hep. Leg. p 348 Mo. 281, 300, 301; same Yol 10 Supplement p 174 170, 178; 4 Aubry & Eau p 83; 1 Baudry Lac p 406 Mo. 774; 3 Duvergier p 381 401; L Guillonard 203; 2 id 527; 25 Laurent p 287, 288 264; Trofílong Louage p 410 316.

The Articles of the Code governing this case are as follows:

C. C.-1926 (1920) "On the breach of any obligation to do or not to do, the obligee x x may require the dissolution of the contract &o ".
C. C. 2046 (2041)«“A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements; in this case x x the party complaining of a breach of the contract of tha contract, may either sue for its dissotion & c
0. C» 2710 ( 2680)."The lessee is hound: lo To en.ioy the thing leased as a good administrator, according to the use for which it was intended by the lease, x x xn C. C. 2711 (2681). "If the lessee makes another use of the thing than that for which it was intended, and if argr loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease & c".

In interpreting these Articles SUr Supreme Court has decided that premises rented for a store could not be used as a kitchen 7 E. 205; that a building erected to serve as a boarding and lodging-house could not be converted into a coffee-house. 39 A. 766.

In France it has been held that a builcüng rented as a dwelling could not be occupied as a gambling house^ear for immoral purposes, nor for a restaurant, nor for a hotel, nor for a coffee-house, nor for a club, nor for a blacksmith or locksmith shop, nor to carry on a commercial business, nor to change a concert hall into a coffee-house. Our researches, however, have failed to produce a single case in which the lease of a building to be used as a residence or dwelling would be violated by being occupied, in part, by a physician, or lawyer, or other person following a profession or occupation inviting the visit of clients, patients, or customers.

In the case of Moreira vs Heckman No. 7842 this Court said:

"A dwelling-house is a place for the accommodation and shelter of human beings, and the householde r may admit into his house whomsoever he pleases even boarders and lodgers; nor does his home thereby cease to be his private dwelling house".

A person who receives a boarder in her home cannot be said to be a boarding house keeper. 22 A. 316.

A house remains a residence when the keeping of boarders is only an incident; but becomes a boarding house when the keeping of boarders is the main purpose.1 L. R. A. N. S. 962.

The only witnesses who testify to the use of the rented premises are the plaintiff himself and two detectives employed by him to inquire into the actions of the defendant's wife.

The plaintiff testified that lots of people rang at the door bell and asked to see the ladv doctor or Mrs. Prutsman; hais son lives in the same house and isa physician, and many people call to see him; his sign is on the house.

One of the detectives is a woman; she called on the "Christian Science lady" to be treated for a headache; there were others there; she went alone once, and another time with a lady; she paid one dollar for each of two treatments; the "Christian Science lady" told her about Christian Science, explained to her; she told her what Christian Science would do for her and to forget about her trouble, and that the headache would get all rigfrt.

The other detective is a man; he called on Mrs. Prutsman one afternoon to receive treatment and she gave him instructions in Christian Science: he went back the next day and got the other treatment; the second day there was another patient waiting; he did not go into the room, but waited in the hall.

We do not see how it can be said that the actions of the defendant detailed above can be construed into making another use of the property; it still remained a dwelling and the receiving of visitors or patients was only incidental. We have nothing to do with the question whether the defendant's acts were part of a religion or of a business; the question is did that "dwelling" lose its character as such by reason of defendant's actions? If defendant's contention was correct then a lawyer could not receive his clients, a physician his patients, or an artist his customers, in a house occupied by him as his dwelling and rented by him as such, without violationg his lease. We believe that such would be too narrow a construction to give to the Articles of the Code especially in the absence of any precedent, and in absence of any injury to the property. We take in consideration also the fact that the plaintiff's son is a physician, resides in another part of the same building, haB his sign as such affixed to the front of the house, inviting the visit of patients, and, in the language of plaintiff, as a witness, receives "frequent calls*. There is no allegation that the defendant is in competition with him. There is no doubt that the plaintiff might have stipulated that there should be in his building no professional man, no artist, no Christian Science Healer, and even that no one should ever have access to the building except the members of defendant's family. But he has not done so. In the absence of such a clause the defendant was free to receive any persons he ohose, whether it was socially or in business. 6 A. L. R. 465.

In the language of our Supreme Court in Sieward vs Denechaud 120 La. 720 (730):

"The destination in the use of this búilding is not syi-cha'Xged to a prejudicial extent, in so far as plaintiff is concerned; at any rate, not to such an extent as would justify us in annulling the lease. At this time, with the testimony before us, we must decline to grant plaintiff's demand".

It is therefore ordered that the judgment herein be reversed and that there now be judgnent in favor of defendant rejecting plaintiff's demand at his cost in both Courts.

October 31st, 1921.  