
    No. 473
    BRINKMAN v. LAUCH, et
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1681.
    Decided April 5, 1926
    545. FORFEITURE — 1. Equity will not decree forfeiture for non-payment of rent, where amount is in dispute and lessee is willing to pay amount actually owing.
    2. Where lessor acquiesces in breach of covenants of lease, he cannot afterward declare it forfeited for such breach.
    Attorneys — Oonn & Holloway for .Brink-man; Ira B. Cole for Lauch; all of Toledo.
   WILLIAMS, J.

On July 15, 1925, Clara Brinkman entered inGto, a written lease with Charles Lauch, whereby Brinkman was to occupy a certain frame building and a three car garage, rental thereon being stipulated as being $45.00 per month, payable monthly. There was a provision in said lease that the said building was to be used for concession stand and garage purposes only.

Said lease also contained a provision that lessee was not to engage in any business that was in conflict with or contrary to the laws of Ohio. It also contained a forfeiture clause providing forfeiture for non-payment of rent or for failure to perform any of the conditions.

On January 12, 1926, Lauch alleging that Brinkman was two months in arrears of payment of rent, served her with written notice to vacate the premises. On Jan. 15 Brinkman offered to pay the back rent but Lauch refused to accept same and brought action in forcible entry and detainer and to recover possession of the premises, alleging that there had not only been a non-payment of rent, but also that the tenant had sold cigarettes and maintained slot machines on the premises contrary to the laws of Ohio, and also that tenant had used said premises for resident purposes.

Brinkman brought this action in Lucas Common Pleas to enjoin Lauch from further action in forcible entry and detainer alleging that she was not in arrears of rent and that Lauch had acquiesced in the further breaches of the covenants in the lease. Common Pleas rendered judgment in favor of Lauch. On appeal, the Court of Appeals held:

1. A court of equity will not permit a forfeiture for nonpayment of rent where there is dispute as to the amount due and the lessee is willing to pay the actual amount owing.
2. Where lessor himself brought about and acquiesced in the breach of covenants in a lease, the lease will not be declared forfeited for breach of those covenants.

Judgment of Common Pleas reversed.  