Lovejoy v. McCarty

Ma-r.bttat,t., J. It is contended by appellant’s counsel that the trial court erred in directing a verdict for the respondent, because there was evidence from which the jury might have found facts sufficient to operate as a cancellation of the lease as to McOw’ty. Sec. 2302, R. S., provides that “no estate or interest in lands . . . shall be . . . surrendered, . . . unless by act or operation of law, or by •deed or conveyance in writing, subscribed by the party - . . surrendering the same, or by his lawful agent, thereunto authorized by writing.” It is not claimed that there was a written cancellation of the lease. The only writing made by respondent or in his [344] behalf is the one signed by him on the back of the lease. That does not appear to have been intended as a cancellation of appellant’s liability. On the contrary, it expressly declares that such liability shall continue. The 'written consent to an assignment or sublease did not change the relation of the parties. Under an assignment or sublease, and subsequent acceptance of rent from the assignee or sublessee, even without any express stipulation for a continuance of the liability of the original lessee, he remains liable. Martineau v. Steele, 14 Wis. 272; Bailey v. Wells, 8 Wis. 141; Rees v. Lowy, 57 Minn. 381. No principle is better settled than this, and it is based on the ground that there is nothing in such circumstances necessarily inconsistent with the continued relation of the parties as landlord and tenant. A fortiori is the original relation continued when the written consent, as in this case, expressly declares that it shall so continue. But it is contended there is evidence that the written consent was rejected by appellant, and that there was a verbal agreement entered into between respondent, acting by his authorized agents, Bogers & Buger, and appellant, that Walker should be substituted for the latter, and that the premises were actually yielded up and surrendered to Walker, as respondent’s lessee, pursuant to such understanding; in short, that there is evidence of an executed verbal agreement for the surrender and cancellation of the lease, hence of appellant’s liability thereon. That such facts would constitute a surrender of the lease by operation of law is well settled, and has been repeatedly decided by this court. Kneeland v. Schmidt, 78 Wis. 345; Telford v. Frost, 76 Wis. 172; Witman v. Watry, 31 Wis. 638; Goldsmith v. Darling, 92 Wis. 363. But, assuming that there is evidence tending to show that Bogers & Buger assumed authority to make an agreement with appellant for the surrender of the lease, and that such agreement was executed as claimed, that was [345] not sufficient to carry the case to the jury. Authority to the agents to bind their principal was essential. An agent can only bind his principal when acting within the scope of his authority, express or implied. The rule in regard to proving the authority of an agent to create a charge upon the realty of his principal applies to a case like this; i. e. it must be clearly established. Engfer v. Roemer, 71 Wis. 11. There is here absolutely no evidence of authority to Eogers & Euger to consent to a cancellation of the lease. On the contrary, the consent in writing, clearly expressing the terms upon which Walker might occupy the premises, negatives such authority It constituted notice to appellant that no such authority existed. Moreover, the agents testified that they were not authorized to do otherwise than as indicated in such written consent. Such being the case, whether the agents made an agreement to substitute Walker for appellant, as lessee of the respondent, and whether such agreement was executed by an actual surrender of the premises by appellant to Walker, as lessee of the appellant, were immaterial, and left the court no course to pursue but to direct a verdict for the respondent. By the Court.— The judgment of the superior court is affirmed.