
    NO. 8895.
    COURT OF APPEAL PARISH OF ORLEANS
    CATHERINE GERMANN versus F. W. KELLER
    
      
    
   Dink el spiel; J»

This is a suit for rent. A provisional seizure was issued and the contents of the property, 1133 Beronne Street seized for two months rent end the further ol&im, counsel's fees, together with interest, costs and charges and other expenses. The amount involved was rents for the months of August and September, Sixty cellars per month.

The answer asserts that it had always been customary for defendant to pay rent in arrears and that the plaintiff obtained his writ of provisional seizure without first properly notifying defendant that rent was to be actually paid in the future.

SSbxx Under the oontract of les.se in this case, independent of the ordinery terms usually used in the execution of a contract, there appears this: "Failure to strictly and promptly enforce these conditions shs.ll not operate as a waiver of lessor's rights, lessor expressly reserving the right to. always enforce prompt payment of rent or cancel this lease regardless of any indulgences or extensions previously granted. Failure to comply with any conditions or obligations of this lease will make lessee liable for sny damage sustained by lessor."

From the testimony.in this case it appears that the defendant from time to time was backward in.the payment of his rent, in-other words the rent notes became due on the end of each and every month and were payable at plaintiffs house, but instead of being paid there it was customary for the plaintiff to visit de?» fendant at his pl-aee of business and' then at timee when defendant apparently would claim indulgence for a short period sometimes for • a few days and sometimes for a little longer time; plaintiff protested but-on promise of defendant to’pay'would gr&ht these re-maésts .but' without Sn any way waiving the rights that she had under, the lease-as heretofore quoted and defendant's contention that On Jfrequent oocassipns these; extensions, were;.'granted, does not .h'eUb^fciá.casev -The-ponditióna- of 'the'lease' itself as quoted gives that right, -to plaintiff»

March 5, 1923.

The; "authorities quoted* in both plaintiff s.E-nd defend--pht'-'a'briefs-would :be applioabl^ in this case,' Wit thp lease itself its v.etjf/tayms avoids the.'.'indulgerioe claimed'by defendant in-this-; pase, -'so -the pase of Brunning versus Grlnnage. 4th Ct. of App. 433, and Bacas vs. Mandot, 3rd Ct. of App. 234 are therefore net in point and, cannot.help defendant's ease*.

In .this Court plaintiff ha's ashed for damages for f.riv-ilóus- appeal. We do not-'consider that sne is entitled to -same for, ,the\reason .this .was. a .very spirited, oonte.st over the question as'to the extension of.'.time.-and-we .are', satisfied from reading the testimony and-.from-all;the.- circumstances surrounding, tnat derena-int .believed that he had a ve,lid defense and therefore plaintiff is. hot entitled to-damages-as prayed for»

For the reasons- assigned it is ordered, adjudged and deoreed, that the judgment, of- the Court aquo be and the same- is hereby affirmed^ ..posts of both Courts to oe paid; by defendant,,

-Judgment hffirmed-  