
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    GEORGE SCHWARTZ versus W. S. McCRAW
    No. 7574.
   o ii s i o ir

Max DlaholBplol. Jado.

' This Is an aviation suit. MaCraw, the defendant, occupied ti» premisas 19££ Poniste» Street, under a laasa fro» tha Liberty Homestead, am agent far as unknown pr Inai pal, datad Sep- \ tambar 6, 1918, far ana year fro* Oatabor 1st., at a monthly ramtal af ‡40.00, payabla am tha lst.af as ah month, "ha laasa contains, amongst other previsions, tha folldwing:

"Should lassos booome owner of thin property, this laasa ta be null and raid."

Tha praparty la quastlam was put up for sale at anatlon In tha fettar part af Saptambar ar early part af Oataber. MaCraw, tha dafandant, and Sahwartz, the plaintiff, were competitive bidders at tha sala. One Harris B, Radmann became the adjndleatea. Tha deed ta him was made am Oatabar 19, 1918, and he In turn transferred tha property ta Sahwartz, tha plaintiff, two days -thereafter, ar Oatabar £1, 1918.

On tha 11th af Oatabar, 1918, whlah was aven befara tho data af tha deed ta Radmann, the attorneys far Sahwartz, acting under lnstraetienB from him, notified MaCraw ta vacate tha premises by the 1st af November. The rent far November and December was paid by defendant ta tha Liberty Homestead. Under date af December 14,1918, the attorneys far Schwartz wrote MaCraw that Sahwartz had fcntherlzad them to sallaet tha rents ah tha property, that tha lease which was made with tha Liberty Homestead had bean transferred ta Sahwartz, and that payments should be made to the attorneys at thalr afflaa promptly at the aenelusien of each month. lisCraw, after consulting with his attorney, who was Mr. J. Zaeh Spearing, advised the attorneys af Mr. Sahwartz th»t certain injuries t® the roof ana the water-pipes were causing considerable damage, and ended the letter by stating that he would be glad to take the Matter up with a view of amicably and satisfactorily adjusting the question, and expressing the hope that he and the attorneys for plaintiff would succeed in doing sc.

Be reply was received to that letter. It was daring the Christass week and also the second Visitation of the "flu", which was at its height then, therefore conditions genevally were very mush confused and unsettled. The rents prior, .'or October and Hevember, had been paid, as stated, to the Liberty Homestead Association, and under the advice cf Mr. Spearing Mr. MoCraw, the defendant, did not pay the rent due, because he was advised that Sohwartz had not yet become the owner of the property and there might be some trouble.

The rent due January 1st, 1919, not having been paid January 7, 1919, and there being no agreement, no acquiescence in delay, no waiver, no admission, and no equitable estoppel en the part cf plaintiff, the lessor, through his attorneys, insisted that payme.nt should be made promptly at maturity and tbet all terras of the lease should be strietly complied with, and on the 24th cf January, 1919, the present suit was instituted, alleging, amongst other things, that in violation of said lease the said W. S. MoCraw failed to pay the rent to petitioner due January the 1st, 1919; that owing to said failure on the part cf said MeCraw to pay said rent petitioner had notified him on January the 7th, 1919, to vacate the premises in question, and attached to. the petition a eopy of the notifioation, dated January the 7th, 1919, which notification was received by said MeCraw ten days previous to the institution of this suit; end the prayer was that defendant, MeCraw, be cited summarily by rule to show cause on a day and hour to be fixed by the court why Judgment should not be rendered herein in favor of petitioner, ana «gainst MoCraw, eondeming hi») to vacate said premisos Do. 1922 on Penisten Stroet, between Dryades and Ranpart Streets, in thiB oity, and to deliver possossion of tho sano to potitioner, and decreeing that upon his failure to oenply with sala Judgment Within twenty-four hours after its rendition a writ ef possession issue heroin, oammandlng the Civil Sheriff of the Parish of Orleans to eject hi* fro* said premises and put. petitioner in full possession thereof.

On the 7th of February, 1919, exceptions to the petition and rule were filed, setting up: (l) That the saae discloses no cause ef.action; (2) that plaintiff is not a proper party and has no standing in this suit; (3) that the same is too vague, general ?nd indefinite to permit exceptar to properly answer theroto; (4) the pre»)aturity of the suit. And in accordance with the order of oourt the defendant, through his ecuisel, on the saae day answered, reserving the benefit of exceptions, setting up:

1st: Admitting that by .?n agreement in writing the liberty Homestead icased to respondent the premises 1922 Penioton Street for a tern, of twelve months frop. the 1st of Oeteher, 1938, to 'September the 30th, 1919, at a monthly rental of $40.00, payable on the 1st day of eaoh month, and respondent alleges that said contract of leas* is the beat evidence oi its contents; further alleging that, though it is stated in the lease that the liberty Homestead leased the preperty to respondent, there in nothing to indicate the person for whoa tho homestead pretended to act as agent, and therefore the lease was entirely ano solely with tne liberty Homestead.
2nd: Denying that tho homestead had trsnsforred or assigned the loase to the plaintiff, and if this was done it was done witheut the knowledge of the defendant.
3rd: That tha allegations In tha patltlan being rngue, general and indafinita, and nat specifying whether tha natiae therein required naa giran verbally ar in writing, ar when giran, daniaa that faet, hat adulta that he raeeirad fren the attorneys af tha plaintiff a lettar dated tha 14th af Decantar, 1918, infcrn-ing hi» that the plaintiff was then tha awnar af tha preparty and requesting that paynenta- aheuld ha nada at tha affica af tha sttarneya for tha plaintiff, which letter was annexed ta and made part af the anawar; that when this occurred there was na rent due, and defendant did nat eenaant nor a «¡quiesce in the transfer af tha lease from the liberty Homestead ta plaintiff, ar any athar person; that there were defeats in said hailding which should he repaired, and which respondent, as ha was adrised and helierea, was not liable for, it being heeessary to repair the roof to one part af tha building and to repair a leak in one of the pipas orar the pantry, whieh was eausing considerable damage, net only ta defendant’s awn effeets, but to the building *taelf; that under the adrice af counsel there was written, an December 18, 1918, a latter to the attorneys af plaintiff, calling their attention ta tha neeesBity af asking the repairs, and avoiding any dlsausslon af tha effect of the transfer of the lease, hut nat aequieoeing therein, suggesting the desire to take tha natter up so that it could be amieably and satisfactorily adjusted, and a aepy af the letter in question is annoxod and nada part of tha anwor; that na reply was reoeired ta said letter, hut that defendant was ready, willing, able and prepared to pay the rent whan due, but that no demabd was nade upon hin either direotly or inaireotly far sane.
And further answering, respondent says he did net pay the rant te the plaintiff ea January the 1st, 1919, but denies that his failure te de ae was, under the faeta and clreuaBtaneea ef this ease, a Tlelatlen ef the lease, but ea the eentrary, claims and aliajes that he was well withim hie rights and was justified in acting as he did. He alleges further and denies that either the plaintiff or the liberty Hemestead made any demand, upen him fer the payment ef the rent due an January 1, 1919, either at that time or any ether time, and therefere, that he was in any manner in deafult. He denies, further, that he ever received from plaintiff any netlee te vacate the premises, as required, in the manner presided by law. Ho alleges that en er about January 9, 1919, he paid the rent fer the month ef December te the liberty Hemestead, from when he had rented said promisee, end the hemestead aecepted said rent, therefere he wap absolved from any fault or default er penalty fren any delay which night have existed in the payment ef said rent, the manner of the payment ef said rent being the same whleh had been fellewed by him during his oeeupaney ef the premises.. Further, respendent denias that the letter dated January the 7th, 191», « a eepy of whioh is also annexed to the petition, • is a notification to.vacate the premises as required and pravlded by law, and denlas that the said letter was served in the manner required hy law, or that the said letter in any manner complies with the law or is sufficient te base this suit upen. He admits that he is still in possession of the premises, and denies that plaintiff is entitled to the summary process ef the court or to any process whatever. He denies that he has in any manner violated the law or infringed the rights, if any, af the plaintiff. He does not admit that plaintiff has any of the rights asserted ty hi* in his petition ánd attempted to he anforeed in this suit. ' '.Therefore he prays the suit he dismissed, for eosts and general relief.

The only testimony in this reeerd are the letters alluded te and the testimony of V.'lUim J. Guate, one of the attorneys of plaintiff, of <7. Saeh Spearing, the attorney for the defendant, and of Hyman ISithsff, who v»as in the employ of the liberty Homestead Association; and from it all, together with the lease, we gather the faots to he as stated in the answer of the defendant in this cause. It is apparent, from an inspection of the lease, from the letters of plaintiff's attorneys and from the nets of plaintiff, that there was an attempt, from the beginning, to dispossess the defendant, and the very first ooport.unity that seemed to he available plaintiff endeavored to take advantage of. The defendant was ever ready and willing, and had always paid his rent promptly to the Liberty Homestead. He was a biddor at the sale of this property, but unsuccessfully so, and even prior to the title being made te plaintiff, or to his agent Redmann, there Was an attempt made to obtain possession by giving notice to the defendant to vacate, whlah was recalled.

It is evident, from the record in this case, that the defendant was not served with notiso to vacate in the proper way under the law. A eapy of this noties is in the record, showing that it was sent te defendant through registered mall, and there was nothing te shew that he had ever received it. On the trial of the ease, when the eeunsel's attention was called to this fact, he was given until the next day to prednee the letter. He failed to do se, but offered the testimony of Mr. Spearing in order to prove service on his client. He utterly failed in this.

The Civil Cede, Article 8157, speaking of the Manner in which obligations may be extinguished, under the head "Plaeo #f Payment" prewldes:

"The payment must be pade in the place spílfied la the agreement. If the place he act.thus specified, the payment, la ease.ef a eertala aa& deterainate substance,. nit he aade In the place, «here wan, at the tlae ef the agreement, the thing which la the fhjeet .ef It.
"These tne caaes excepted, the p&yaent Bust he aade at the dwelling ef the dehter." (Citing eutheritiea).

Article 2712 C. C. prcridea:

"Ica-Bajmcnt ef Heat. The leaaee aay he expelled fren the preperty if he falle te pay the rent when It heeeaes due."

These articles hare been construed by our Supreme Court in the 121 La. Reports, in the case of the Standard Brewing Company v. Andersen, at page 935. At page 941 of the sane ease, the eeart gees en te say:

"She punctuality required ef the lessee la the pay» seat ef his rent has heea designed selely fer the pre-teetiea ef the lesser, end eaunet he aliened te he eea-rerted In his hands Inte a means ef entrapping and ep-presaing the lessee."

In the case of Bacca v. Mandet. 3 Court of Appeal, 824, this ceurt held:

"Whena leaser, aeath after'’aeath, has, wltheut ehjeetlen er pretest, accepted the rental a few days after the maturity ef the aetes, he eanaet, wltheut prerleas aetlee te hla tenant, elala the ferfeltare ef the lease."

She ceurt gees en te say:

"She punctuality required ef the lessee in the pay» awat ef his reat has been designed selely .fer the pre-teetlea ef the lesser, and eanaet he allewwd te be eea-rerted in his hands Inte a Beans ef entrapping and ep> pressing the lessee."

Shis was fellewed by ether deelsleas, and we quete frea Ceurt ef Appeal Reports, Tel. 10, 105, Lafayette Realty Company v. Joseph Puglia. She syllabus reads:

"In the absence ef a stlpulatlea In the lease te the eentrary,. the rent Is payable at the dwelling ef the lessee.”

And In the bedy ef the deelslen, we fiad:

"She plaintiff, as laadlerd, sues te eaneel the lease existing with defendant-, ea the greuad.that the latter failed te pay preaptly the Installment ef rent fer Hay when It aatured an the last dayef that aeath. Ter the purpese ef shewing' that defendant was placed lm mera. plaintiff ralles solely npaa proof ta tha eifeet that defendant fallad ta comply with'the written natías servad upan him dbmandlng that ha.pay this la* stallnent of-rent at plaintiff*» pise» sf business promptly at aaturlty. Sha lasso* was within his .right* when he ignored this demand, for where, as In this ease, there Is ne spaelflaatlan la the lease as te the place where the rent should he paid, tha law prescribed that ’payment must be sad* at the dwelling ef the debtor' (K.C.C.2157). By formally tendering the rent, after aaturlty but prior te default and te filing ef this action, the defendant effectively stripped the landlord ef his right te cancel his lease on the ground alleged."

May _, 1919.

Act Hey 46 legislature ef 1918 dees net in any Banner aid thy&fandany iai this opuso. On the contrary. In ear opinion, it strenghtens defendant's rights.

ITe have thoroughly examined the deouments, particularly the lease, the notloe to vaeate, and everything'else pertaining to this cause, and we have ooae te the conclusion that tha only finding that Is possible in the oase, In eur opinion, Is that the Judgment ef the eeurt a one, dismissing plaintiff’s snit, was absolutely eerreet; and It Is therefore afflrned, with costs In both eeurts.

Hew Orleans,  