Commentaries on the law of estoppel and res judicata Volume 2

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1886 Excerpt: ...has been done by the choice, or would result from setting it aside, and where a bond or promissory note is joint and several in its terms, the promisee or obligee must treat it as being either the one or the other, and cannot sue one of the obligors or promisors separately after obtaining a joint judgment against al1.' The right to exercise an election within a given time must be taken advantage of within such time or it is lost. Thus, a stipulation in a note that it may be paid in specific articles of property or in work or labor is for the benefit of the payor, and he may, as he elects, pay either in property or labor, and if he makes proper tender can compel the creditor to accept payment in the articles or work; but if he fails to duly exercise his election, or make a proper tender when it is necessary, the creditor may enforce payment in money.' § 1046. Where, by reason of a breach of condition, a lease becomes forfeited, and the lessor is entitled to recover possession; he waives that right by the acceptance of rent, he cannot accept the rent and at the same time claim a forfeiture of the lease.' Thus, a demand for rent due for the month of July is a waiver of a right of entry for Apri1.1 bo, where a tenant pays rent to a stranger in reliance on his landlord's admission, that such party was entitled thereto; the landlord is estopped to enforce a claim for such rent.' Alienation without license operates as a forfeiture of the term; still, if the lessor, with knowledge of the forfeiture, receive rent due since the condition broken, such conduct upon his part operates as a waiver of his right to take advantage of it. But not so if the landlord was unaware of the fact of the forfeiture at the time of receiving the rent, unless, perhaps, where it appe...