Snowhill v. Reed

Reed, J. It is first objected by the counsel for the plaintiffs in certiorari that the court below admitted evidence improperly. [294] This was oral testimony, on the part of the defendant, to the effect that while the negotiations for the agreement to surrender were in progress one of the plaintiffs said that if the defendant would let the plaintiffs have the property they would not ask him to put back the counters and shelving. This testimony was improperly admitted. The writing itself was complete upon its face. It expressed clearly upon what terms the surrender should be made. The parol testimony engrafted a new term upon the written agreement, and for this purpose its reception was illegal. Naumberg v. Young, 15 Vroom 331. This error will lead to a reversal, unless by the arrangement to surrender the defendant is relieved from a performance of the covenant to leave the premises in as good repair as they were at the commencement of the lease. The term, by the lease, was to run from October 1st, 1883, to October 1st, 1884. Had there been no accepted surrender, the covenant would have been performed by leaving the premises in repair on October 1st, the end of the term. The tenant was not bound to keep the premises in repair during' the continuance of the term, but only to leave them in good repair at the end of the term. Nor is it deniable that a surrender terminates the tenant’s estate, and with it all covenants-contained in the lease, and operates to relinquish all rights of action for breaches which did not occur during the life of the lease. Platt on Covenants 585; Deane v. Caldwell, 127 Mass. 242. The question here presented is whether the covenant was-broken during the life of the lease. If it could not be broken until the end of the term -named in the lease, namely, at the-end of one year, then it follows that it was at that time impossible for the tenant to perform. By the surrender he was out of possession, and by the-accept-ance of the surrender the landlord had assented to anextinguishment of the covenant before any breach. But I do not regard the covenant as one to leave the [295] premises in repair at the end of the period of time mentioned in the lease. The time for performance was the time of expiration of the lease. The lease expired by reason of the surrender as effectually as it would have expired by the efflux of time without a surrender. When, therefore, the defendant entered into an arrangement for a surrender, the event upon which the performance of his covenant was dependent was shifted from October 1st to September 1st. This conclusion seems to accord with the result in the case of Austin v. Moyle, Noy 118, cited at length in Platt on Covenants. A leased to B for ten years, and B covenanted to leave four acres of the ground fallowed and plowed at the end of the term, and in the lease there was a proviso that if B mistake his bargain he may surrender his estate on a year’s warning. B afterwards surrendered accordingly, and it was adjudged by the court that the surrender was no dispensation of the covenant, but otherwise, if the lessee had covenanted to leave the four acres fallowed and plowed at the end of the ten years, for then the acceptance of the surrender before the expiration of the ten years would have made it impossible for the tenant to perform his covenant. In the above case it is true that the option of a surrender before the ten years is contained in the lease, and so this ending of the term may be said to have been in accordance with the terms of the lease itself. But I am unable to see in what way the insertion of the right to surrender in the lease affects the principle. The construction of the covenant still remains to be determined by the inquiry whether the tenant was to perform at the end of the period named in the lease, or at the expiration of the tenant’s term. If the former, then a surrender before the arrival of the end of the period named discharges the covenantor. If the latter, then a surrender, which itself ends the term, fixes the time of the surrender as the time for performance. [296] I construe the present covenant to bind the tenant, not to leave the premises in repair at the end of one year, but whenever the lease shall end, and that it ended, within the meaning of the covenant, by the surrender. The judgment below should be reversed. Beasley, Chief Justice, and Dixon, J., concurred.