Meeker v. Spalsbury

The opinion of the court was delivered by Collins, J. The leading case on constructive eviction is Upton v. Townend, &c., 17 C. B. 30, accepted by this court as declarative of the law in Morris v. Kettle, 28 Vroom 218. In that ease, Chief Justice Jervis (at p. 64) said that eviction must be “not a mere trespass, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the'enjoyment of the demised premises;” and Mr. Justice Willes (at p. 72) more fully and accurately defined it as “an act of a permanent character done by the landlord in order to deprive, and which had the effect of depriving, the tenant of -the use of the [64] thing demised, or of a part of it.” This definition has been generally approved in this country. Tayl. Land. & T., § •377, note 3. The temporary obstruction, therefore, of the passage-way to the Essex Hotel, recited in the case certified, could not constitute an eviction, even if the exclusive use of the passage-way can be deemed a part of the demised premises. The remedy, if any, of the tenants for such obstruction as was authorized by the landlord was not to cease paying rent, but to seek damages for breach of the landlord’s implied covenant for quiet enjoyment. Under the same case of Upton v. Townend, the alterations recited might constitute an eviction, but, as applied to the tenants’ abandonment of the demised premises, their effect was rather that of an acceptance of a surrender of the term. By the statute of frauds such a surrender must be in writing, unless arising by act and operation of law. Gen. Stat., p. 1602, § 2. The new demise to Sehluer, standing alone, would not effectuate a surrender, for a re-letting was expressly authorized if the premises became vacant or deserted, and, as it appears that the rent secured for the unexpired term was all that was procurable, the tenants could not complain that the demise was made to extend beyond that time. The new lease, with its peculiar provisions, like the previous letter to Yost, might be evidential of the intention of the landlord in his conduct after re-entry, but was not, of itself, an acceptance of a surrender by the tenants. This case must turn on the remodeling of the building after its abandonment by the tenants. We need not consider what would have been the effect of the radical changes made had there been no provi.sion in the lease on the subject, though there is judicial opinion that even in such case the tenancy would have been legally determined. Tayl. Land. & T., § 515; Wood L. & T. (2d ed.), § 494, and cases cited. In the case in hand the parties,, by their own agreement, limited the rights of the landlord after, as well as before, an abandonment of the demised premises. He was to have the right to enter and make such repairs as should be necessary for the preservation of the premises. 'When the plaintiff did more than that he con [65] clusively evinced Ms intention to’hold possession on Ms own account, thereby accepting the tenants’ abandonment as a surrender. When the minds of the parties to a lease concur in the common intent of relinquishing the relation of landlord and tenant, and execute this intent by' acts which are tantamount to a stipulation to put an end thereto, there, at once, arises a surrender by act and operation of law. Talbot v. Whipple, 14 Allen 177, 180, and cases cited; Woodf. Land. & T. 302. Accordingly, to the first question propounded by the Circuit Court, we answer that there was no eviction, and to the second that the particular acts recited in the question did constitute such a surrender in law of the demised premises as relieves the defendants from all liability for the rent sued for in the pending action.