Gage v. Bates

Opinion — Temple

Temple, J., delivered the opinion of the Court, "Wallace, J"., Rhodes, C. J., and Spbague, J., concurring:

The complaint, which was to enforce a forfeiture for the non-payment of rent, and to recover the demised premises, avers that* “on the 2d day of duly, 1868, plaintiff duly notified defendant, in writing, that he was in arrears of rent, and on said day, in writing, demanded payment of rent then due.” This complaint is demurred to, on the ground that it does not state facts sufficient to constitute a cause of action, and the particular point of the demurrer is that the complaint does not aver a demand for the precise sum due. The demurrer was overruled, and the plaintiff recovered judgment, and the defendant appeals.

The rule is well settled at common law, and has been so held in this State, that to work a forfeiture the landlord must have made a demand for the precise sum due on the premises, or wherever the rent was payable, on the day it became due, and at a reasonable time before sunset. (Taylor’s Landlord and Tenant, Sec. 493, and authorities there cited; Chipman v. Emeric, 3 Cal. 273; Gaskill v. Trainer, Id. 334.)

The Statute concerning unlawful holding over of lands, tenements and. other possessions (Statutes 1863, p. 586), has changed the rule as to the time in which demand may be made. In other respects the law remains as before, and the same strictness in . making the demand is necessary. Taking the complaint most strongly against the pleader, it shows that no precise sum was demanded, and the demurrer should have been sustained.

Judgment reversed and cause remanded, with directions to sustain the demurrer.

Cbockett, J., expressed no opinion^