
    208
    SMYTHE v. EPSTEIN
    Ohio Court of Appeals, Cuyahoga County
    No. 4037.
    Nov. 15, 1922
    This ooinion has not been published except in Abstract
    LEASE — (l) Verdict of jury is notice to lessee of default of — (2) Acceptance of rent not a waiver of time of performance of — (3) Measure of damages for breach determined by the lease of — (4) Interest on damages may be charged.
    Error to Cuyahoga County Court of Common Pleas
    Attorneys — Wilkin, Cross & Daoust, for Smyth Cook, McGowan, Foote, Bushnell & Lamb, for E] stein.
   INGERSOLL, J.:

Epitomized Opinion

Epstein, in 1912, leased to Smythe certain property for 99 years, one of the covenants of the lease providing that Smythe should, before the expiration of five years from the making of the lease, have expended $3,000 in permanent improvements. The leas further provided that Smythe might assign the leas and be relieved of liability for rent, taxes, etc., bn if the provision concerning the permanent improve ments were not complied with Smythe’s liabilit should not be terminated. Smythe assigned the leas and it was thereafter assigned several times until on Burke in 1919 defaulted in payment of taxes, ren etc. The evidence showed that the improvemen covenant had not been complied with and that Smyth had been notified of this non-performance on tw occasions. Epstein recovered $3,000 in Common Plea Court. Smythe declares that he did not have sui ficient notice of the default, that Epstein’s accept anee of rent after expiration of time of performanc waived time of performance of the contract, tha Epstein was entitled to only nominal damages an that the court erred in allowing interest to be charge on the $3,000, which was an unliquidated sum, sine no date'was fixed when it was to be paid.

Held by Court of Appeals in affirming judgmen for Epstein:

1. A verdict for lesser by a jury properly ir structed is conclusive that notice was given lessee e non-performance of a covenant of the lease.

2. Acceptance of rent by a lessor after the e> piration of time of performance of a, covenant in lease does not waive the time of performance.

3. Damages for non-pérformance of a contract c lease are determined by the provisions of the lea? itself. Damages for failure to make improvement costing $3,000 are properly fixed at $3,000.

4. Damages will be considered as liquidated at th expiration of the time for performance of the cor tract for which damages were awarded, as provide in the contract and interest may properly be charge on the sum from such time.  