Stein v. Hyman-Lewis Co.

Whitfield, O. T., delivered the opinion of the court. We think the testimony shows there was a valid verbal lease, made for the year from the 14th of April, 1906, to the 14th of April, 1901. Indeed, counsel for appellee do not seriously combat this contention. But we also think that the testimony shows a surrender of this lease and an acceptance of the surrender by the lessor, Stein. There is nowhere in the record any suggestion that Stein ever gave the appellee any notice [299] that he would hold it for the rent for the year. In the ease of Auer v. Penn, 99 Pa. 370, 44 Am. Rep. 114, it appeared that the lessor declined to accept the surrender, and notified the lessee that he would hold him for the rent. In the case of Alsup v. Banks, 68 Miss. 664, 9 South. 895, 13 L. R. A. 598, 24 Am. St. Rep. 294, it also appeared that the lessor refused to accept the surrender, and notified the administrator that he would hold the estate of the _ lessee for the rents. In the case of Kiernan v. Germain, 61 Miss. 498, it was counted on as a most important fact that no hint was given the lessee by the lessor, that there was no objection to his leaving the premises, or that any attempt .would be made to hold him for the rent afterwards. In 24 Cyc. p. 1374, it is said that an absolute and unqualified taking of possession shows an acceptance, unless the landlord indicates to the tenant his purpose to hold him liable for the rent. Again, in paragraph 4, p. 1375, and in paragraph 6, same page, the failure to notify the tenant that he will rent the premises on the tenant’s account is counted on as an important fact. See, also, the notes to these pages of Oye., and see, especially, White v. Berry, 24 R. I. 74, 52 Atl. 682, and Duffy v. Day, 42 Mo. App. 638, and the cases cited in note 25, p. 1375; one of them being our own case of Alsup v. Banks, supra. What does or does not constitute a surrender of the lease and an acceptance thereof must be determined from all the facts in each particular case. Without stating in detail all the testimony on that point in this case, we think it is a fair deduction from the testmony that there was such a surrender here, and an acceptance of it, especially in view of the fact that the appellant never notified the lessee at any time, not even after receiving the notification in December, 1905, that they would not renew the lease, that he expected to hold the lessee for the rent. On the whole case, we think the peremptory instruction was properly given. Affirmed.