Burnham v. O'Grady

Winslow, J. At the time of the alleged surrender of the lease it had still more than a year to run. It could only be surrendered, therefore, “ by act or operation of law,” or by an instrument in writing “subscribed by the party” surrendering the same. R. S. sec. 2302. It is not claimed that there was any surrender by instrument in writing such as the statute requires, therefore the only question is whether there was a surrender by operation of law. Such a surrender arises where the lessee actually surrenders possession of the premises to the lessor, who accepts the same and takes possession of the premises himself or leases them to an [464] other. Witman v. Watry, 31 Wis. 638; Kneeland v. Schmidt, 78 Wis. 345. We have been referred to no authority holding that a surrender can be implied by operation of law when the tenant still retains possession, as tenant, of the leased premises or any material portion of the same. On the other hand, it seems manifest that the first essential and fundamental fact which must be present to constitute a surrender by operation of law from the acts of the parties is the surrender by the tenant of the leased premises. Without this fact there is no severance of the relation of landlord and tenant, and unless this relation be ended it is certain that the lease cannot be held to be surrendered, because an effective surrender must, of necessity, put an end to that relation. In the present case the tenant retained the keys of the building and the actual possession of the lower floor until the 12th day of July, therefore it cannot be held that there was a surrender of the lease prior to that time. By the Court.— Judgment affirmed.