United States District Court, Eastern District of Illinois
August 28, 1956
THOMAS L. PERRY AND ARLISLE PERRY, PLAINTIFFS,
FLOYD WADDELOW, DEFENDANT.
The opinion of the court was delivered by: Platt, Chief Judge.
Plaintiffs, residents of Wisconsin, present this action for
declaratory judgment. A lease was executed by the plaintiffs to
the defendant, a resident of Illinois, on certain premises
located in Champaign, Illinois. A controversy has arisen as to
whether or not the defendant has the right to renew or extend the
lease for an additional five years.
There is no dispute as to the facts. Plaintiffs brought an
action for forcible entry and detainer in the Circuit Court of
Champaign County, Illinois, alleging a breach of a term or
condition of the lease. That court decided in favor of the
defendant. Plaintiffs perfected an appeal to the Appellate Court
and the lower court was affirmed. The Appellate Court held:
"Acceptance of the monthly rent payments from the
defendants in the situation presented by the facts in
the instant case must be held to have constituted a
waiver by the plaintiffs of their right to declare a
forfeiture of the lease by reason of the alleged
breach. Moses v. Loomis, 156 Ill. 392, 40 N.E. 952;
Webster v. Nichols, 104 Ill. 160; Gaskins v. Ristich,
339 Ill. App. 493, 90 N.E.2d 232." Perry v. Waddelow,
351 Ill. App. 356, 362, 115 N.E.2d 348, 351.
The lease contained the following clause:
"First party hereby grant second partion option to
lease for an additional 5 years on the same terms."
The defendant gave notice of renewal in March, 1956. The
parties have stipulated:
"That the conditions under which the Defendant
Floyd Waddelow has occupied the premises leased to
him by the Plaintiffs, Thomas L. Perry and Arlisle
Perry, have not changed since the date of the filing
of the original action in forcible entry and detainer
in the Circuit Court of Champaign County, Illinois."
The defendant has filed a motion for summary judgment supported
by affidavit setting forth the above facts. The sole question of
law to be determined as stated by the plaintiffs is:
"[I]f the lessor has waived a cause for forfeiture
of the original lease by acceptance of rent, is he
then estopped from asserting the original breach as a
cause for refusing to grant an option to renew."
The general rule applied to contracts is that any ground for
forfeiture once waived cannot be revived. Garbaczewski v.
Vanucci, 342 Ill. App. 367, 96 N.E.2d 653; Elmore Real Estate Imp.
Co. v. Olson, 332 Ill. App. 475, 76 N.E.2d 204. (Transferred
392 Ill. 46, 63 N.E.2d 764.) A lease is a contract between the
landlord and the tenant. Union Guardian Trust Co. v. Colwood Co.,
6 Cir., 111 F.2d 671.
Since a lease is a contract, the same principle of law is
applicable. The waiver of the right to declare a forfeiture of a
lease by a breach is irrevocable and cannot be revived. In Moses
v. Loomis, 156 Ill. 392, 395, 40 N.E. 952, 953; the court said:
"[W]here a lease contains a condition of forfeiture
in case the tenant underlets the premises without the
written consent of the lessor, if, after such
condition is broken, the
lessor does any act which is clearly inconsistent
with his reliance upon it, such as the acceptance of
rent with full knowledge of all the facts, such
conduct amounts to a waiver of the condition, so as
to preclude the lessor from afterwards availing
himself of the forfeiture." (Emphasis supplied.)
Quoted in Palmer v. Meriden Brittannia Co., 188 Ill. 508, 521,
59 N.E. 247.
This lease contained a provision as a part of the contract that
the lessee, at his option, could lease the premises for an
additional five years on the same terms. The plaintiffs contend
that the additional five years will not be on the same terms. The
effect of the waiver was to cancel the condition which had been
breached, and this condition could not be revived for the full
term of the grant. Becker v. Morstadt, 381 Ill. 422, 427,
45 N.E.2d 643. The waiver of the breach does not change or modify
the terms of the original agreement or lease. Becker v. Becker,
250 Ill. 117, 125, 95 N.E. 70. Inasmuch as the lessee exercised
the option, he would occupy the premises for the additional five
years on the same terms as provided in the original lease. In
"The right to renew or extend a lease is not
affected by the nonperformance of covenants or
conditions in the lease where the circumstances show
that the lessor has waived performance of the
covenants or the conditions, or a breach thereof."
172 A.L.R. 1440, Cf.
In the instant case the covenants or conditions of the lease were
waived and the court so held in Perry v. Waddelow, supra. The
defendant is entitled to the additional five years as provided in
Plaintiffs have cited several cases which require compliance
with certain conditions before a renewal or extension of the
lease. These cases are not analogous to the instant case where
the grant of the right to renew or extend on the same terms is
unequivocal. See Saxeney v. Panis, 239 Mass. 207, 131 N.E. 331.
The defendant's motion for summary judgment must be granted.
Final order may be submitted.
Dated at Danville, Illinois, this 28th day of August, 1956.
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