Cunningham v. Stockon

Citations

• 81 Kan. 780
• 106 P. 1057
• 1910 Kan. LEXIS 430

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Landlord and Tenant — Rental Advancement — Penalty or Liquidated• Damages — Default in Rent and Possession Taken by Landlord. In a lease contract an owner undertook to erect a building and let it to a tenant for five years at a stipulated rental, payable monthly, the tenant to make an advance payment of $4200, to be applied on the fifth year’s rent. The advance payment was made, the building erected, and it was occupied for some time by the tenant, who paid the accruing rentals. Before two years of the term had expired default was made in the payment of rent, and because of the nonpayment of rent the landlord took possession of the premises and also of property belonging to the tenant and relet the premises at a reduced rent. The tenant brought an action to recover the deposit advanced, and the landlord claimed that it was part performance of a violated contract and that he was therefore entitled to retain it. Held, that the deposit could not, under the circumstances, be regarded as liquidated damages, and that when the landlord elected to dispossess the tenant he terminated the lease and ended the obligation of the tenant under it for the remainder of the term and was not entitled to retain the deposit, except so much, of it as was necessary to pay the rentals which had accrued when possession was taken.</p>