De Morat v. Falkenhagen

Opinion by Mr. Justice Green, The appellant does allege in her affidavit of defence, positively, “ that she surrendered possession of the demised prem [394] ises to P. H. Schaeffer, the agent for the plaintiff, on the 31st day of January, A. D. 1891, and possession thereof was accepted by him.” Of eourse, as this question arises upon an affidavit of defence, the absolute verity of the allegation must be assumed for present purposes, and we must, therefore, assume that P. H. Schaeffer was the duly authorized agent of the plaintiff, competent to act with reference "to this subject. In Auer v. Penn, 99 Pa. 370, the present Chief Justice said, in delivering the opinion: “ A surrender of demised premises by the tenant during the term, to be effectual, must be accepted by the lessor. The burden of proof is upon the tenant to show such acceptance.” An acceptance by one who is the agent of the landlord, is the same as an acceptance by the landlord, and hence the averment of such acceptance, in an affidavit of defence, is sufficient to carry the case to a jury, who can determine whatever disputes may arise as to the fact of ageney and the fact of surrender. In Teller v. Boyle, 132 Pa. 56, there was no allegation of an acceptance of the surrender, either by the landlord or by any one for him, and for that reason we held the affidavit insufficient. But here the acceptance by an agent for the landlord is averred, and we cannot question the legal effect without denying his authority, which we certainly cannot do in the face of the affidavit. It is not necessary to consider the other matters set out in the affidavit, as they will all arise on the trial. Judgment reversed and procedendo awarded. A petition for a reargument, filed May 16, was refused May 30, 1892.