Thomas v. Sanford Steamship Co.

Libbey, J. The defendants bad been occupying tbe plaintiffs’ wharf in Bangor for several years prior to April 1, 1877, under a parol agreement, at a rent of $1200 per year, payable quarterly, and on April 1, 1877, the agreement was renewed for another year on the same terms. The defendants occupied the wharf to December 31, 1877, and paid the rent to January 1, 1878. This action is for the rent from January 1, to April 1, 1878. The agreement between the parties, under our statute, created a tenancy at will. By the statute, (B. S., c. 94, § 2,) it could be terminated only by thirty days’ notice in writing therefor by one party to the other, or by mutual consent. It is not claimed that it was terminated by the defendants by thirty days’ notice in writing therefor; but it is claimed by them that it was terminated .by mutual consent, and here arises the contention between the 'parties. The burden of proof is upon the defendants to establish this fact. The following facts appear to be established by the evidence : When the rent-due October 1, 1877, was paid, the defendants’ agent caused to be communicated, verbally, to the agent of the plaintiffs that he thought the defendants would not want the wharf after the next quarter; about a week afterwards the plaintiffs’ agent wrote the defendants’ agent, in substance, that he was surprised that;they were going to remove from the wharf; that ho thought they ought to keep it another quarter; that the lease commenced in April, and should end in April. To this letter the, defendants’ agent replied, but his reply is not in evidence, and we cannot, therefore, infer that it is favorable to the defendants. On the 31st of December, the defendants removed all the property they had on the wharf, and ceased to occupy it after ■ that time. On the first day of January, 1878, the defendants’ ■ clerk went to the plaintiffs’ agent to pay the the rent, handed ihim a check and the key to a small store house, the only building ■ on the wharf, saying, "here is a check and the key; we moved > everything yesterday.” He took the check and the key and made ■ a.receipt for.the rent. Nothing was said about taking the key, i or about giving up the wharf. The wharf was unoccupied till .April .1, 1878. [551] The plaintiffs’ agent in no way consented to the termination of the tenancy unless the foregoing evidence proves it. The delivery of the key by the tenant, and keeping it by the landlord, are not sufficient to show a surrender of the premises by the tenant and an acceptance by the landlord, unless that appears to be the intention of the parties. Withers v. Larrabee, 48 Maine, 570, and cases there cited. The authorities establish the proposition that the surrender of the premises by the tenant, and taking possession by the landlord, are sufficient to show a termination of a tenancy at will. Amory v. Kannoffsky, 117 Mass. 351, and cases cited. In this case there was no acceptance of the possession, and occupation of the premises by the plaintiffs, but they remained unoccupied. To show that the tenancy was terminated by mutual consent, it must appear that the minds of the parties met and agreed or assented to the fact. It is not sufficient that the premises are abandoned by the tenant and that the fact is known by the landlord, but it must appear that he consents to if. Hero the tenant had expressed a probable desire to terminate the tenancy on the first day of January. The landlord had objected, on the ground, in substance, that the rent was fixed by the year; that the year commenced on the first day of April, and that the tenancy should terminate on that day, the quarter from January 1, to April 1, being of but little value, as the river was closed to navigation. This being the position of the parties, and understood by them, wo do not think that what occurred between the defendants’ clerk and the plaintiffs’ agent on the first day of January, proves a termination of the tenancy by mutual consent. The defendants arc, therefore, liable. Defendants defaulted. ApplictoN, C. J., Walton, DaNfoioti, Virgin and Peters, JJ., concurred.