
    F. M. Teufel, for use of Leon J. Long, Appellant, v. John Rowan.
    
      Landlord and tenant — -Default by tenant — Waiver.
    A landlord by accepting overdue rent does not waive a clause in his lease providing that all the rent reserved in the lease shall become immediately due and payable upon default for five days on the part of the tenant to pay any monthly instalment.
    Argued Oct. 80, 1896.
    Appeal, No. 82, Oct. T., 1896, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T\, 1895, No. 107, sustaining exceptions to auditor’s report.
    Before Sterrett, C. J., Green, Williams, McCollum;, Mitchell, Dean and Fell, JJ.
    Affirmed.
    Exceptions to auditor’s report. Before Kennedy, P. J.
    The facts appear by the opinion of the Supreme Court.
    
      Errors assigned were in sustaining exceptions to auditor’s report.
    
      C. S. Crawford, for appellant.
    Any act of a creditor by which the debtor is thrown off Ids guard will entitle the latter to relief against a forfeiture arising by mere default of time: McNeil v. Amey, 2 W. N. C. 65.
    January 4,1897:
    Equity will not permit a party to take advantage of a contract after a long course of dealing contrary to its terms, without notice that hereafter he intended to enforce his rights: Cogley v. Browne, 11 W. N. C. 224; Wanamaker v. McCaulley, 11 W. N. C. 450 ; Times Company v. Seibrecht, 11 W. N. C. 283; Duffield v. Hue, 129 Pa. 94; Lynch v. Versailles Fuel Gas Co., 165 Pa. 518; Merrill v. Trimmer, 2 Pa. C. C. 49.
    Equity never declares or permits a forfeiture when it works a loss contrary to equity : Brown v. Vandergrift, 80 Pa. 148 ; Remington v. Irwin, 14 Pa. 145; Decamp v. Feay, 5 S. & R. 828; Forsyth v. Oil Co., 53 Pa. 173; Tiernan v. Roland, 15 Pa. 429.
    When a landlord by a course of dealing in accepting overdue rent has put a tenant off his guard, a forfeiture of a lease for nonpunctual payment of rent cannot be enforced, unless notice has been given to the tenant calling upon him for compliance with the strict terms of the lease: Haverstick v. Gas Co., 29 Pa. 256 ; Bispham’s Principles of Equity, sec. 176.
    W. G. Guiler, with him M. A. Woodward, Walter Lyon, John F. Sanderson and Charles H. McKee, for appellee.
    The clause providing for the immediate maturity of the rent is not inserted as a mere security, but as a solemn contract, and time is the very essence of the contract: Baldwin v. Vanvorst, 10 N. J. Eq. 577; Hulings v. Drexel, 7 Watts, 126; Smith v. Hooton, 3 Dist. 251; Warwick Iron Co. v. Morton, 148 Pa. 72; Atkinson v. Walton, 162 Pa. 219; Collins v. Rockafellow & Co. 35 Pa. 83.
   Opinion by

Mr. Chief Justice Sterrett,

The learned auditor, charged with the distribution of the fund raised by the sheriff’s sale of the defendant’s personal property, reported in substance the following findings of fact, inter alia:

That the defendant, John Rowan, leased from Jacob Kaufman et al., the Central Hotel for five years from April 1, 1892, at a rental varying in amount each year. The rent for the third year, commencing April 1, 1895, was $13,000, payable in advance on the first of each month. By a subsequent and “ auxiliary agreement,” all the rent reserved in the lease became immediately due and payable upon default or failure for five days on the part of the tenant to pay any of the monthly instalments of rent, or any part thereof.

The property levied on and sold was upon the demised premises, at time of seizure, and liable to be distrained for all the rent then due.

At the time of the levy the tenant bad already failed to make one or more of the monthly payments of rent for the year commencing April 1, 1895.

Prior to the levy the landlords had accepted from their tenant payments of rent overdue and in arrears under the terms of the lease.

The legal conclusions drawn by the auditor from his findings of fact were, inter alia, substantially as follows :

That the acceptance of overdue rent by the landlords condoned the default arising, under paragraph contained in 'the “ auxiliary agreement,” from their tenant’s failure to pay his rent according to agreement, “and operated as a waiver of said paragraph; and that said waiver is attended with the same legal consequences with respect to any other or future default by said tenant under said paragraph, as if the covenant therein expressed had never been made.” He accordingly held that the landlords were entitled to rent only up to the date of the sheriff’s sale, August 30, 1895.

Exceptions to these conclusions were filed by the landlords ; and in the decree from which this appeal is taken the learned court below sustained the exceptions, and awarded rent to the landlords for the year ending April 1, 1896. In thus holding that the tenant’s default under the paragraph in what is termed by the auditor the “ auxiliary agreement,” which provides in substance that all rent reserved in the lease shall become immediately due and payable upon default or failure of the tenant, for five days, to pay any monthly instalment of rent or any part thereof, was not condoned by the acceptance of overdue rent, the court was clearly right on both principle and authority. The clause in question is a part of the contract between the parties. As was well said by the learned president of the common pleas: “ The acceptance of a portion o.f the amount due, and failure to exact all that was due at that time, cannot be a waiver of the contract, but at most is only evidence of a willingness to indulge the debtor.”

Similar stipulations in mortgages have been upheld in numerous cases from Huling v. Drexell, 7 Watts, 126, to Platt, Barber & Co. v. Johnson et al., 168 Pa. 47. In Atkinson v. Walton, 162 Pa. 221, our Brother Dean says: “ The rulings in all the cases from Huling v. Drexell, 7 Watts, 126 to the present have been that in this class of securities the issuing of a scire facias is not to declare and enforce a forfeiture but to enforce the payment of a debt, which by the contract became due .... It has never been held that mere delay of suit, or neglect to rigorously exact his money on the day it is due, is evidence of a waiver of his (the creditor’s) contract right.” The principles underlying these cases rule the question under consideration in favor of the’ landlords.

The cases cited by the plaintiff on the subject of forfeitures, etc. have no application to the case before us.

Decree affirmed and appeal dismissed at appellant’s costs.  