Commercial Hotel Co. v. Brill

Siebeckee, J. Appellant contends that the court erred in its finding that there was a surrender of the hotel premises by the defendant Brill, as lessee, on December 9, 1899, when Eenn and Ashauer took possession. It is not claimed that there was a surrender in writing as required by the statute, but it is claimed that there was a surrender by operation of law, in that the lessee (Brill) actually surrendered possession of the premises to plaintiff by turning them over at the request and direction of plaintiff’s secretary and agent to Eenn and Ashauer, who had leased them from plaintiff. Such circumstances are sufficient in law to constitute a surrender of [642] a lease under seal. As stated in Witman v. Watry, 31 Wis. 638: “Where, before the expiration of a lease under seal, the lessee actually surrendered possession of the premises to his., lessor, who accepted the same and leased them to another, it was'held to be, in effect, a surrender.” 1 Washburn, Real Property, § 739. See, also, Kneeland v. Schmidt, 78 Wis. 345, 47 N. W. 438; Goldsmith v. Darling, 92 Wis. 363, 66 N. W. 397. The court found that the evidence established an actual surrender of the premises by the lessee to plaintiff when he assigned his lease and delivered possession of the premises to Renn and Ashauer, who had leased them from plaintiff by an agreement with Voight, plaintiff's secretary and agent, for the unexpired term of the lease. The evidence upon this issue was in conflict. We cannot say that the finding excepted to is against the clear preponderance of the evidence. As set out in the foregoing statement of facts, the testimony of Britt clearly tends to show that there was an actual surrender of the premises to the lessor by an assignment of the lease and delivery of the keys to Renn and Ashauer at its agent’s request, and that they took possession of the premises as tenants of the plaintiff. The evidence of Renn and Ashauer corroborates this claim. We must hold that there is proof to support this finding. It is further claimed that there is no proof sustaining the finding that Voight had authority to act for plaintiff in effecting a surrender of the lease. It appears that he is the secretary and treasurer of the plaintiff, and as such signed the lease to the defendant Brill; that he was charged with the duty of giving possession of the premises to Mr. Brill, and of attending to the making of impairs; that he collected and received the rent from the defendant, and that all negotiations by Renn and Ashauer to secure the lease of the premises were conducted with him, and that he secured the assignment of the lease. His authority to act in all these matters seems to be [643] conceded up to the point of effecting a surrender. _ Tbe extent of bis authority, as evidenced by all these acts, must be held to carry with it authority to effect a surrender of the lease as an act reasonably within the scope of his employment in conducting and managing plaintiff’s business. Mechem, Agency, §§ 278, 279, and 287. By the Gourt. — Judgment affirmed.