Milling v. Becker

Mr. Justice Trunkey delivered the opinion of the court, November 22d 1880. These parties disagree on the question whether the letting of the premises was by the month or year, and on this the conflicting tes [185] timony was fairly submitted. But the testimony on. all controverted questions might as well not have been submitted at all, for the jury were instructed that on the case, as claimed by the plaintiff, the defendant ought to pay rent until the end of the year, unless the plaintiff was guilty of neglect and might have rented, but did not, and that he was bound to use his utmost endeavors to rent the premises for the reliéf of the defendant; and, if the renting was by the month, the verdict must be for the defendant. Now, the parties agreed that the plaintiff made no effort to rent the premises to another till the end of the year; also, that the rent was paid up to the first of October. Therefore, the affirmance of defendant’s first and second points was decisive against the plaintiff. A vital point to a complete defence was to establish a rescission of the lease by mutual agreement. Three witnesses on part of defendant said that when the last rent was paid, a few days after her removal from the premises, the plaintiff took the key without saying a word; and three witnesses on plaintiff’s behalf testified that he absolutely refused to accept the key. Probably the testimony was sufficient to warrant submission of the question; but it was far from conclusive, and by no means justified instructions as if it were an indisputable fact that there was a surrender. The declaration of a landlord that his tenant had given up his lease, accompanied by an unsuccessful attempt to lease to another, is not conclusive evidence that their relation had ceased. There must be an agreement to rescind or the lease continues in force, and the acts and declarations of the parties tending to prove such agreement are for consideration of the jury. Mere removal by a tenant with unaccepted offer to deliver the key, is not evidence of a termination of the lease: Kiester v. Miller, 1 Casey 481. Taking care of the key of the house and repairing the floor after the tenant had voluntarily left, were no eviction. He would have been entitled to enter if he had returned : Pier v. Carr, 19 P. F. Smith 326. So, taking care of the key and cleaning the windows of a house after the tenant had left, would not be conclusive evidence of the landlord’s acceptance of a surrender. The effect of a surrender is to pass the estate of the tenant to the landlord, which results in extinguishment of the rent reserved and accruing out of the less estate not due at the time of the surrender : Greider’s Appeal, 5 Barr 422. Hence, if there was an agreement for surrender' made in October between Milling and Mrs. Becker, no rent which was not then due can be recovered; but if there was no such agreement whether the term was for a month or a year, the plaintiff was entitled to the rent until the end of the term. In case of a surrender, it was immaterial whether the plaintiff did or did not rent the premises to another; and if the relation of landlord and tenant was not ended by contract, he was [186] not bound to rent to another during the term for relief of the defendant. Nothing in the original contract obligated him to seek another tenant, and had he done so and put one in possession of the premises, he could recover no rent of the defendant accruing thereafter. That, indeed, would have relieved the defendant — a most absurd thing for him to do if he wished to hold his contract with her. She alone had as little power to terminate her obligation to pay rent until the end of the term as she had to make the léase. It takes as many persons to rescind a contract as it took to make it, unless it contains a stipulation that it shall become void upon a contingency. The third and sixth assignments are well taken; and the first and second must also be sustained. True, if the defendant rented by the month, she had a right to end the lease at the expiration of any month, but she would be bound to pay the rent for that month unless there was a surrender. The tender of a half-month’s rent at the time the key was left, was vain. If the jury found the facts mentioned in the defendant’s first point, without more, the defendant was not entitled to a verdict. She moved after the first of October, and in any view, was liable for the rent of that month if the contract was not rescinded. The defendant’s second point assumes that the plaintiff accepted the key of the premises, and for that reason ought to have been refused. . Judgment reversed, and venire facias de novo awarded.