#### Schmidt, Appellee, *v.*Hummell, Appellant.

(No. 3981

Decided June 6, 1947.)

*168
      *Mr. Thomas W.*Applegate, for appellee.

*Mr. Isadore L. Margulis,*for appellant.

Hornbeok, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus,' for plaintiff, appellee herein, for $13.33, and costs, for rental, and an order of restitution of premises to the plaintiff.

Four errors are assigned:

1. In overruling defendant’s motion for dismissal and entering judgment in his behalf at the close of plaintiff’s evidence and at the close of all the evidence.

2. The verdict and judgment of the Municipal Court are contrary to law.

' 3. That the verdict was in direct conflict with the defendant’s constitutional rights.

*4.*That no cause of action existed at the time of the trial on behalf of the plaintiff against the defendant.

The action was for forcible detention of premises owned by the plaintiff and occupied by the defendant as a tenant from month to month. The plaintiff, desiring to secure possession of the premises which he had acquired prior to October 20, 1942, requested authority from the" Office of Price Administration to institute his action in eviction, which authority was granted. Notice, of date October 31, 1946, was given to the defendant by the plaintiff, stating that he desired possession of the premises on and after ten days from October 31, 1946, pursuant to O. P. A. regulations. On the 29th of October, 1946, defendant’s counsel mailed to the plaintiff a money order payable to bim in the sum of $40 and therewith a letter to the effect that the money order was for rent for the *169month of November 1946. On October 31, 1946, plaintiff’s counsel acknowledged receipt of the money-order and stated that be bad been retained to obtain possession of tbe property occupied by tbe defendant, that tbe plaintiff desired to terminate defendant’s, tenancy, and that the money order “is not accepted as rent by Mr. Schmidt and is being-retained by me as evidence in any future legal action wbicb might be necessary.” Thereafter, on November 12, 1946, plaintiff instituted bis action, in tbe first cause of wbicb he sought restitution of tbe premises and in tbe second cause, money judgment of $13.33, tbe amount of rent that bad accrued from November 1st to tbe '10th of November, 1946.

To tbe petition defendant answered by way of general denial and tbe cause came on for trial on issue thus drawn. Upon tbe record there is little or no dispute in tbe evidence and there is presented tbe question whether plaintiff is entitled to a judgment on either or both causes of action.

Tbe evidence discloses that tbe money order was sent, and received according to tbe respective claims of tbe parties, but it was not proffered at tbe trial nor was it tendered back to tbe defendant.

It is tbe claim of plaintiff that no issue was, or could be, made whether tbe receipt and retention of tbe money order was a payment of rent or affected or extinguished plaintiff’s right to restitution of tbe premises because payment was not pleaded. This contention, no doubt, is correct as to tbe second cause of action for money judgment. It is incorrect as to tbe first cause of action.

Tbe question for tbe determination of the trial court upon tbe first cause of action was whether ’the plaintiff was entitled to tbe possession of tbe premises as of tbe date of tbe notice to leave them. Tbe clear*170anee of the O. P. A. merely authorized the plaintiff to proceed in his action to eject the defendant and did not relieve him in any particular of the obligation to make full proof of his right to the possession of the premises. The letter from the area rent attorney tb a judge of the Municipal Court clearly states this obligation in this language:

“It should be understood that plaintiff must prove the facts set forth in his notice of eviction before he is entitled to judgment in his favor. ’ ’

Any evidence which would be probative on the issue as to the respective rights of the parties to the possession of the premises was competent and admissible. No answer is required in a forcible detention action but if one be filed it does not necessarily restrict the introduction of any defensive matter. It is stated in the first paragraph of the syllabus in *Paducah Home Oil Co.*v. *Paxton,*222 Ky., 778, 2 S. W. (2d), 650, 56 A. L. R., 797:

“On a plea of not guilty in forcible detainer proceeding, all defenses, both legal and equitable, may be made.”

That statement, in Ohio as to the Municipal Court, should be modified to include “legal defenses only” because that court does not have equitable jurisdiction. See, also, *Farmer*v. *Pitts,*108 Neb., 9, 187 N. W., 95, 24 A. L. R., 719.

Although the basic cause for the plaintiff’s demand for his property was that he had the right to occupy it under O. P. A. regulations, it is manifest that if he received and accepted payment of rent, as such, for the period covered in his action and by his notice to leave the premises, he could not be .heard to say that he was entitled to their possession. The condition under which the money order was sent to him two days before his notice to leave was defi*171nitely set out in the letter from defendant’s counsel. The conditions under which the money order was accepted were, in the first instance, set out in the letter from plaintiff’s counsel in which he expressly stated that plaintiff was not accepting the money as rent but for evidential purposes only.

It is difficult to appreciate for what purpose the money order, tendered as it was before the rent was due, could have been admissible on any issue before the court. However, conceding that it may have been held until the trial and there offered as evidence, the purpose of the plaintiff to no longer retain^ it and not to accept the benefits thereof, should have been expressed at the trial. This was not done and at no time has the plaintiff tendered the money order back to the defendant.

Nor has there been, at any time, objection made to the medium of payment. In this situation the. offer ,was equivalent to a tender in lawful money. 40 American Jurisprudence, 761, “Payment,” Section 68; *Thompson*v. *Crains,*294 Ill., 270, 128 N, E., 508, 12 A. L. R., 931; *Gaunt*v. *Alabama Bound Oil & Gas Co.,*281 F., 653, 23 A. L. R., 1279, annotation at page 1288; *Minsky*v. *Zieve,*255 Mass., 542, 152 N. E., 41, 51 A. L. R., 391.

The acceptance and retention of the money order by plaintiff has made it impossible for the defendant to recover back the money which was paid to secure it and the plaintiff only can control its disposition. Having retained it at all times, it must be held that it is solely retained as rental covering the period included in the judgment for restitution of the premises. The only logical conclusion to be drawn is that this money was payment for the month of November. This being true, the defendant and not. the plaintiff was entitled to the possession of the premises on November 10, 1946.

*172“Except where the instrument is shown to be worthless or to have been lost or destroyed, it is a condition to recovery that the creditor surrender to the debtor the instrument taken, so that the debtor may be secure against an action thereon by a *bona fide*holder, into whose hands the paper may have come.” 40 American Jurisprudence, 762, “Payment,” Section'69.

The specific question raised here has not heretofore been determined in Ohio, or elsewhere, so far as we are able to find, but an analogous principle, even as to payments made after notice, is recognized in an annotation to *Barlow*v. *Hoffman,*103 Colo., 286, 86 P. (2d), 239, in 120 A. L. R., 562. The annotator draws this conclusion:

“The courts are not in accord on the question whether acceptance by the landlord of, or action or distress by him for, rent accruing subsequent to the expiration of the notice to quit, constitutes a revocation or waiver of the notice to quit.

“(1) The great weight of authority holds that it constitutes a waiver.”

Citations are made supporting the note from seven states, the District of Columbia, the United States, England and Canada. Some of the casés hold that payment by the tenant and acceptance by the landlord of rent, even after expiration of a notice by the landlord to quit, and much less during the running of the notice, is not in itself a waiver on the part of the landlord of the’ notice so given, but is merely evidence to be considered in connection with the circumstances of the case. *Western Union Telegraph Co.*v. *Pennsylvania Rd. Co.,*120 F., 362; *Pillot v. Moss,*72 Ohio App., 492, 53 N. E. (2d), 73.

The last cited case is typical of those wherein the tenant sent a check, or money order, *after*the notice to *173quit the premises and where the money order or cheek may be used as evidence as showing payment after default and is in conflict with *Wilcke*v. *Smith,*45 Ohio Law Abs., 555, 68 N. E. (2d), 386. Por a case somewhat like ours, see *Hartell*v. *Blackler, 2*K. B., 161, 10 B. R. C., 478, 123 L. T. N. S., 171, W. *N.,*95.

• In the instant case, the plaintiff took judgment for the period from November 1st to November 10th, inclusive. The money order tendered before any arrearage, if accepted, paid the rent not only for this period but for all of the month of November. In addition to the judgment covering ten days rent and the money order for the whole month of November, the defendant posted bond, the effect of which was to secure the rent for another period of five months if the judgment was properly entered against him. The retention of the money by the plaintiff under these circumstances can be reconciled only upon the theory that he expects to retain it and this can be done only upon the theory that it is rental for the month of November. •

The judgment on the first cause of action was not supported by the evidence and should have been for the defendant and judgment thereon will be entered in this court for the defendant. • The judgment on the second cause of action will be affirmed.

*Judgment accordingly.*

Wiseman, P. J., and Miller, J., concur.