Pratt & Reath v. H. M. Richards Jewelry Co.

The opinion of the court was delivered, October 9th 1871, by Thompson, C. J. It is not within the province of a court to say whether a given offer would actually prove the fact it was offered to prove, provided its tendency be to prove the fact. If it, with other facts in the case, tend to establish a result matei’ial to be established by the party offering it, it should be admitted, and go to the jury. It is for them to pass on it under instructions from the court. Bespondeant facto jur atores. In the case in hand the letters of the defendants transmitted by mail to their landlord, H. M. Richards, offering to surrender the room in the building he had leased from Cooley and to them, his silence, and non-claim for rent for seven years, was, with the testimony of Leavitt, important to go to the jury on the question of a surrender in fact by Richards, the plaintiffs’ landlord, and its acceptance by the paramount landlord, Cooley. There was proof that the plaintiffs had failed and surrendered to H. M. Richards, and that he surrendered to Cooley. Leavitt, whose testimony was rejected, says: “ Richards took me through the building and put me in possession.” “ The whole upper part of the building was put in my possession at the time mentioned (June or July 1861), according to the paper and personal surrender.” “Mr. Richards put me in possession of that building from 1st of May 1861 to 1st of May 1862.” “ From the time of the surrender mentioned, in June or July 1861 to May 1862, I acted as landlord of the premises.” “ The front room in the third story of that building (the room of Pratt, Reath & Co.) was vacant in the month of [59] May or June 1861. I had authority to let it, whenever it was vacant, to any person I chose.” Leavitt was Cooley’s agent, not the defendants’. Surely this was evidence on the question of a surrender accepted from defendants by Richards, and a surrender by him to the paramount landlord for himself and for the jewelry company, likewise accepted. If the surrender was an accomplished fact for the time the lease had to run, which was about a year, I cannot see wherein the Statute of Frauds had anything to do with it. If there was a surrender and acceptance, the lessee" would be estopped from claiming rent while he held the premises. These plaintiffs are, we think, in this category. If their lease was taken off their hands, what right have they to claim rent for the premises ? They were no longer landlords. In fact, their surrender acquitted them of rent, as it did their lessees. Now we say this being the appearance of the case as it is presented here, we think the learned judge should have admitted the testimony, and then both fact and law would have been eliminated properly and satisfactorily. We think the defendants were very likely damaged by the ruling of the learned judge; and that the testimony offered should have been admitted and then probably there would have been no room for the peremptory direction to find for the plaintiffs. Judgment reversed, and venire de novo is awarded.