Fish v. Thompson

Montgomery, J. (after stating the facts). The circuit judge charged the jury as follows: “I charge you, as a matter of law, that an oral agreement made by defendant in September or October to vacate and give up possession of the premises and surrender her rights under the lease to plaintiff or her agent, Mr. Peterson, on November 15th, in consideration that she would be released from her obligation to pay rent for the balance of the year, would not terminate her right to hold possession of the premises, unless, in pursuance of such agreement, she did actually vacate the premises, or a portion of them, * * * and complainant, or her agent, Mr. Peterson, by some unequivocal act, received back a portion of the premises. In other words, there must have been not only a promise by Mrs. Thompson to complainant or her agent, Peterson, to vacate the place and surrender her rights under the lease on November 15th, but this promise must have been acted upon by Mrs. Thompson, by vacating and giving up possession of a part of the premises, and by complainant or her agent accepting said part.” Error is assigned upon this instruction, and also upon the refusal of the court to direct a verdict for the defendant. There seems to be no disagreement between counsel as to the law of the case. It is well settled that an agreement by a tenant to surrender at some time in the future the possession of lands does not, if broken, give the landlord the right to enforce the agreement by summary proceedings. He must resort to his action for damages in such [317] case. There must be, in addition to the agreement to surrender, an actual giving up of the lands to the landlord, or other person for him. See Baumier v. Antiau, 65 Mich. 31 (31 N. W. 888); Id., 79 Mich. 509 (44 N. W. 939). Counsel for complainant recognize this rule, but they say: “Defendant wanted to surrender. The situation was brought about enabling her to surrender, so as to satisfy her landlord. She did surrender both her lease and possession. How else can the fact be explained that Mrs. Bishop drew her property upon the premises ? The fact that defendant was accorded the right to stay a few days, —to fix a leaving time, — for her own convenience, does not change the logic of the facts.” We do not think the case open to this inference, under the undisputed facts. It is not claimed that Mrs. Bishop, in moving some of her goods upon the premises, did so under the understanding that there was a present surrender of the premises. There was no suggestion on the part of any of the parties that the defendant was, from the date when these goods were placed upon the premises, to hold the same at the sufferance of Mrs. Bishop. Quite the reverse was true. Defendant was accommodating Mrs. Bishop, by permitting her to move some of her property upon the premises. It was not the intention to surrender these premises to Mrs. Bishop, and from thence on become her mere licensee. On the other hand, Mrs. Bishop was a licensee of the defendant. It is true that there was, in addition to this, an agreement to surrender on the 15th of November. But this was executory, and never acted upon. While the conduct of defendant has been somewhat captious, we are constrained to hold that she continued the tenant of complainant, and that recovery should not have been permitted. The judgment will be reversed, and a new trial ordered. Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., took no part in the decision.