Raleigh City Limits, Inc. v. Sandman , 49 N.C. App. 107 ( 1980 )

HEDRICK, Judge.

The sole question presented by this appeal is whether the trial judge erred in concluding that defendants did not waive their right to declare the lease in default on the grounds that the August 1978 rent, and succeeding month’s rent, was not timely paid. In Winder v. Martin, 183 N.C. 410, 411, 111 S.E. 708, 709 (1922), the Supreme Court stated:

It is the generally accepted rule that if the landlord receive rent from his tenant, after full notice or knowledge of a breach of a covenant or condition in his lease, for which a forfeiture might have been declared, such constitutes a waiver of the forfeiture which may not afterwards be asserted for that particular breach, or any other breach which occurred prior to the acceptance of the rent ....

In Office Enterprises, Inc. v. Pappas, 19 N.C. App. 725, 200 S.E. 2d 205 (1973), this Court, citing Winder v. Martin, supra, held that a landlord is estopped from claiming a breach and demanding forfeiture of the lease when a check for the payment of rent, although tendered late and never cashed, was taken by the landlord and delivered to his attorney.

We find the unchallenged finding of fact in the present case, that defendants received plaintiff’s check for the August and succeeding months’ rent and converted the checks into “official bank checks,” to be a waiver of defendants’ right to declare the lease in default for failure to pay rent on time. The facts as found by the trial judge in this case are even more conclusive than the facts in Office Enterprises, Inc. v. Pappas, supra. The evidence supporting the findings of fact discloses that defendants actually took plaintiffs checks and converted them into “official bank checks” payable to defendants. Plaintiff’s account was debited for each check. The trial court’s conclusion that defendants did not waive their right to declare the lease in default is erroneous and not supported by the unchallenged findings.

Manifestly, the unchallenged findings dictate a conclusion that defendants waived any right they had to declare a default for untimely payment. The unchallenged finding by the court that defendants were refusing the tender of August rent, “unless their differences over the operation of the premises could be resolved,” illuminates defendants’ intentions. Obviously, defendants wanted to exercise, as landlord, more control over plaintiff’s operation in the leased premises than was provided in the agreement; and they were availing themselves of the lease provision concerning default in order to do so.

The erroneous conclusion requires that the judgment for defendant be vacated. Since the unchallenged findings dictate the conclusion that defendants waived their right to declare the lease in default, the cause must be remanded to the district court for the making of such a conclusion and the entry of a proper judgment based on the findings and conclusions for plaintiff declaring that the lease is and has been in full force and effect, and that plaintiff is entitled to recover his costs. The judgment is vacated and the cause is remanded to the district court for further proceedings consistent with this Opinion.

Vacated and remanded.

Judges Hill and Whichard concur.