Leggett v. Louisiana Purchase Exposition Co.

BLAND, P. J. (after stating the facts). — The only error assigned on the appeal is the giving of the following instruction on behalf of defendant: “The court instructs the jury that if you believe and find from the evidence that the defendant removed from the premises mentioned in the evidence on the thirty-first day of December, 1903, and thereupon left the keys of said premises at the office of plaintiff’s agent, and that the plaintiff or her agent then accepted the possession of said premises, then you should find for the defendant. “And you are further instructed that if you find that the said keys were so left by defendant at the office of plaintiff’s agent, and thereafter plaintiff or her agent used, or permitted others to use, the said premises for the purpose of storing property therein, during the period for which plaintiff now demands rent from defendant, such use would be an acceptance of the possession of said premises by plaintiff.” Both paragraphs of the instruction should be read together. When so read the instruction amounts to this: That if defendant vacated the premises December 31, 1903, and left the key at the office of plaintiff’s agent, and the key was thereafter retained by the agent, and the premises used by plaintiff or by her permission, for the purpose of storing furniture therein, such use, in the circumstances, would be an acceptance of the surrender of the premises. McG-ibbons testified he notified plaintiff’s agent he would vacate and left the key at the agent’s office. The key was retained without objection by the agent, and the undisputed evidence is, that immediately thereafter some furniture was stored in the premises and remained there until July 1, 1904. Plaintiff’s agent and her husband both testified the furniture was in the premises but denied that it was placed there at their instance or by their consent. Acceptance of an offer to [75] surrender leased premises is a matter of intention and generally a question of fact to be shown by the facts and circumstances. The facts and circumstances here recited tend to show an acceptance of the surrender of the premises by plaintiff’s agent, but they are not conclusive, and the court erred in instructing the jury as a matter of law that they .showed an acceptance or amounted to an acceptance. The court, therefore, erroneously dedecided this disputed fact by taking it away from the jury. The judgment is reversed and the cause remanded. All concur.