Bank of America v. Moore

In Bank of America v. Moore (1937) 18 Cal.App.2d 522, in setting forth what it found to be the defendant's "most earnestly" defended position, the appellate court stated: "The other, and more earnestly defended position, is that by the terms of the lease itself, defendant's failure to pay rent releases him from the necessity of doing so. This somewhat unexpected term of a lease contract is found, if we could accept defendant's construction, in this provision of the lease: 'And it is Further Covenanted and Agreed that in case the said Lessee fails, neglects, or refuses to pay said rent of said premises at any time during the continuance of the lease, for a period of ten days after any payment becomes due according to the terms hereof, or any part thereof, then and in that case this lease shall thereupon become null and void, and all rights of said Lessee hereunder shall be forfeited and ended as hereinafter provided.' . . . We are of the opinion that an option is not given the lessee to drop the burdens of his ninety-nine year lease whenever he desires to give up its advantage, as would be the case if we interpreted the language quoted as providing for an automatic termination of the lease if the rent was not paid for ten days. This is not the first instrument employing such terms to be the subject of judicial construction and, so far as we are aware, the conclusion has invariably been reached that the option to terminate the lease rested with lessor. Whether the failure to pay the rent did or did not void the lease, the provision was inserted for the benefit of the lessor, it does not constitute an option for the benefit of the lessee." (Id., at p. 526.)