Pershing v. Feinberg , 203 Pa. 144 ( 1902 )

Opinion by

Mr. Justice Fell,

The lease under which the defendant went into possession provided for the entering of a judgment in ejectment if the rent reserved was not paid as it became due. Three monthly instalments of rent were unpaid when judgment was entered, and on the hearing of the rule to open the judgment the only question before the court was whether the defendant had established any equitable ground for relief against the forfeiture.

Five months before the judgment was entered, the plaintiff had instituted proceedings to recover possession of the premises for breach of a condition as to subletting, but had failed in her action. Before the proceedings were ended, the defendant sent checks for two instalments of rent which became due. These checks were returned with a statement that no rent would be received because of the litigation then pending. Three months’ rent became due after the proceedings ended, From this amount the defendant deducted $24:50 for personal expenses incurred by him in attending to the litigation mentioned, and sent the plaintiff a check for the balance, with a statement that it was “ in full for three months’ rent.” The check was returned without comment. The same amount in money was afterwards sent by express, and it also was returned.

Under the circumstances a forfeiture would not be sustained because payment was tendered by check. Checks had been tendered on two prior occasions for monthly instalments, and had been refused, not because the tender was illegal, but for other reasons then stated. If money was demanded, the defendant was entitled to notice. Courts will relieve against forfeiture when the injured party has been misled, or an undue advantage has been taken of his reliance on a waiver of strict performance. But as to the amount to be paid and the duty to pay it, the defendant was not misled. His relation to the plaintiff was hostile, and he had no reason to expect indulgence. The return of the check was notice that his claim for expenses was not allowed. His attempt to collect the claim by deducting it from the rent was unwarranted, and by his persistence in it he placed himself in a position in which the court could give him no relief.

The order discharging the rule is affirmed.