THOMAS et ux.
GIVEN et al.
Krucker, Evans & Kemper, of Tucson, for appellants.
Knapp, Boyle, Bilby & Thompson, of Tucson, for appellees.
DE CONCINI, Justice.
This is an appeal from a judgment of the superior court of Pima county wherein Fred Thomas and Isabell Thomas, the lessors, appellants herein and plaintiffs below, were denied the right to re-enter and obtain possession of premises which they had leased to appellees-defendants.
On or about November 29, 1945, the plaintiffs and defendants entered into an agreement in writing by the terms of which the plaintiffs leased to the defendants the premises located at 92-92 1/2 West Congress Street, Tucson, Arizona. The term of the lease was for a period of 15 years with an option to renew the lease for ten years. The lease provided that the tenants should pay their rent on the 5th day of every month. Defendants entered possession and spent about $31,000 in making improvements. Defendants paid their rent to the plaintiffs every month and were never late in their payment until April of 1951. On April 16, 1951, the rent due the plaintiffs [75 Ariz. 69] for the rental period commencing April 5, 1951 had not been received by the plaintiffs, and they instructed their attorneys to give notice to the defendants to vacate the premises. On April 17, 1951, the notice to the defendants was given by the attorneys for the plaintiffs, said notice being mailed to the defendants' place of business in El Paso, Texas. On April 17, 1951, the plaintiffs received an envelope containing the defendants' check in the amount of $276.68 which was the rent due plaintiffs for the month starting April 5th. That same day the plaintiffs instructed their attorneys to return the check to the defendants and again notify them to vacate the premises. Plaintiffs then brought this action pursuant to Section 27-1215, A.C.A.1939, which provides that the landlord has the right to re-enter and be put in possession of the premises when the tenant neglects or refuses to pay his rent for five days after it is due.
The lease provided that no liquor should be sold on the premises. Upon agreement the tenants were to pay an additional $35 per month if any of their subtenants sold liquor. This occurred and defendants paid the extra $35 per month. In March 1951 defendants made a claim to plaintiffs for $420 as overpayment at the rate of $35 per month for 12 previous months when no liquor was sold there by the subtenant. At the time of the trial the defendants waived this overpayment.
In making his order the trial judge said, 'but since it appears from the undisputed testimony that the nonpayment was not willful, but inadvertent and through a mistake, I do not believe that the court would be justified under the principles of equity which I think are applicable in this case, to work a forfeiture.'
The plaintiffs urge upon this court two assignments of error which may be summarized as follows:
(1) That because of the language contained in Section 27-1215, A.C.A.1939, the plaintiffs are entitled as a matter of law to be put in possession of the premises.
(2) That the rules of equity enunciated by the lower court do not apply where a
statute duly passed by the legislature provides for a forfeiture.
We will discuss both assignments together since the first is wholly dependent upon the second.
Section 27-1215, A.C.A.1939, upon which plaintiffs rely, reads in part as follows:
'(a) Whenever a tenant shall neglect or refuse to pay his rent when due and in arrears for five (5) days, or whenever any tenant shall violate any of the provisions of his lease, the landlord or person to whom said rent is due, or his agent, may re-enter and take possession, or, without any formal demand[75 Ariz. 70] or re-entry, ...