Matthews' Adm'r v. Tobener

Wagner, Judge, delivered the opinion of the court. It appears in this case that the respondent leased to the appellant the demised premises for the period of three years, and that before the termination of the lease the respondent notified the appellant in writing that he would deliver up and surrender the same on or before a certain day designated. On respondent’s vacating the premises,he sent the key to the appellant, who received it without objection, and subsequently placed one Caspar in possession, who continued in their use and occupation till after the time for which they were let to the respondent. There is no evidence to show that Caspar took possession with the privity, connivance or consent of the appellant; but, on the contrary, he says in his evidence, that, seeing the premises vacant and desiring to possess them, he went to the appellant and asked him for the key, and that the appellant told him he did not have the key and could not give him the possession, and that he must go to the respondent and obtain it from him. What will amount to a surrender is often a question which may be presumed from facts. An actual and continued change [120] of possession by the mutual consent of the parties will be taken as a surrender by operation of law, whether the possession is delivered to the' landlord himself or to another in his behalf — Tay. Land. & Ten. 515. In the case of Randall v. Rich, 11 Mass. 493, it was held that when a house was leased under seal and the lessee before the expiration of the term quit the premises and delivered the key to the lessor, who put another person into the house, that it was a surrender, and that" the lessor could not recover of the lessee for after-accruing rents. If the delivering over the key was by mutual consent of the parties, in the absence of any other understanding between the parties a surrender might well be presumed; and when there was no testimony tending to show an agreement or understanding between the parties, the respondent had no right to re-assume possession, and permit another person to use and occupy the premises, if he designed to regard the lease as continuing ; and when he delivered over the key to Caspar and gave him a direct permission to enter, use and occupy without any privity or consent of the appellant, it amounted from that time to an eviction. It follows that the instructions given by the court were wrong, and the judgment must be reversed and the Cause remanded. The other judges concur.