Abbadessa v. Tegu, 844

• Decision Date: 05 March 1958
• Docket Number: No. 844,844
• Citation: 120 Vt. 352,140 A.2d 1
• Parties: Leonard J. ABBADESSA v. Andrew TEGU and Peter Tegu and Trustees.
• Court: Vermont Supreme Court

Page 1

140 A.2d 1

120 Vt. 352

Leonard J. ABBADESSA v. Andrew TEGU and Peter Tegu and Trustees.

No. 844.

Supreme Court of Vermont.

March 5, 1958.

Richardson & Caldbeck, St. Johnsbury, for plaintiff.

Arthur L. Graves, Witters, Longmoore & Akley, St. Johnsbury, for defendants.

Before CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and BARNEY, Superior judge.

HULBURD, Justice.

The plaintiff is seeking to recover rent alleged to be due him under a lease signed by the defendants as tenants. Under a writ dated August 15, 1956, he commenced an action of contract for this purpose. The case was heard by the court and the substance of its unchallenged findings follows. In September 1951 the plaintiff, who was the owner of the Bradford Theatre premises, so-called, entered into a lease agreement with the defendants, whereby these premises, together with certain personal property contained therein, were leased to the defendants for a term of ten years from the 30th day of September 1951. The defendants agreed to pay as rent the sum of $400 monthly, payable in advance. This they did through the month of December 1955, and then, having first sought to get the plaintiff to reduce the amount of the rent without success, by a letter dated Jan. 12, 1956 they notified the plaintiff they were obliged 'to cancel' the lease. On the same or following day the defendant, Peter Tegu, turned over to the plaintiff the keys to the theatre and it was not used by the defendants thereafter. Since then the premises have been available at all times to the defendants. The plaintiff has placed the property in the hands of a real estate agent to sell but this was subject to the defendants' lease. At no time has the plaintiff exercised supervision of the property except such as a reasonable, prudent person in the same circumstances would have exercised.

In general it is the defendants' contention that there was a surrender of the premises by the defendants which the plaintiff accepted and that thereby the defendants' liability for rent was terminated. The first group of exceptions which the defendants have briefed are addressed to this point. The defendants urge that it was the trial court's duty to sift the evidence and make a finding on this question one way or the other. Assuming that this is so, the defendant could not have been harmed by the court's failure to make subordinate findings on this phase of the case unless the evidence was such that they would support an ultimate finding in the defendants' favor of a surrender and acceptance of the lease.

The plaintiff takes the position that an examination of the evidence bearing on this question will disclose that such a finding would not have been justified under our law. It becomes a question, then, of turning to the evidence to see just what the trial court had before it.

In advance of that however, we must first have in mind what we are looking for in the evidence. Our law on this subject is stated in McSweeney v. Dorn, 104 Vt. 110, 158 A. 88. It may well be summarized by two quotations from the opinion in that case. Thus at page 113 of 104 Vt., at page 89 of 158 A. the court says:

'A surrender of the possession is not necessarily a surrender of the term. In the law of landlord and tenant, the word 'surrender' involves something more than the action of the tenant, alone. It has a contractual significance. As it takes two to make the bargain, it takes two to dissolve it in this way. There must be what amounts to a mutual agreement to put an end to the relation of landlord and tenant. Such an agreement may be express or implied. 2 Thomp.Real Prop. § 1460. But, in the case of the residue of an existing term, no acts by the parties will amount in law to a surrender, unless the landlord's assent thereto is clearly inferable therefrom.'

And later in the opinion at page 114 of 104 Vt., at page 89 of 158 A. the following paragraphs are to be found:

'When the defendant made the last payment of rent, he returned the key of the apartment to one of the plaintiffs, who thereafterwards by a placard in the window and an advertisement in a newspaper attempted to rent it to other parties. While these acts are admissible on the question of acceptance, and in some measure indicate an acceptance of the term, none of them nor all together amount, without more, to an acceptance in law, nor do they necessarily discharge the tenant from his covenant to pay rent. Spikings v. Fox, 145 Ill.App. 337, 340; Feust v. Craig, Sup., 107 N.Y.S. 637, 640; Newton v. Speare Laundering Co., 19 R.I. 546, 37 A. 11, 12; Breuckmann v. Twibill, 89 Pa. 58; Conover v. Sterling Stores Co., 14 Del.Ch. 26, 120 A. 740, 743; Banks v. Berliner, 95 N.J.L. 267, 113 A. 321, 323.

"Too much importance,' said Judge Jones, 'should not be attached to a delivery of the keys to the landlord and his attempt to relet the premises.' Jones, L. & T. § 549. The legal significance of such acts depends upon the quo animo of the landlord. So the burden was on this defendant to show that these plaintiffs intended to accept. This intent must be established by some unequivocal act or acts. Those above recited are not such. Owens v. Ramsey, 213 Ky. 279, 280 S.W. 1112, 52 A.L.R. 149, 153; Rogers v. Dockstader, 90 Kan. 189, 133 P. 717, 4 A.L.R. 663, 665; Weinsklar Realty Co. v. Dooley, 200 Wis. 412, 228 N.W. 515, 517, 67 A.L.R. 875; Taylor, L. & T. § 549.

'That the defendant failed in his proof on the question of acceptance is well shown by the recent case of Roberts v. Wish, 265 Mass. 179, 163 N.E. 892. That was a suit for rent accruing after the tenant abandoned the premises; and the contention was made that the question whether or not there was a surrender and acceptance was one of fact for the jury. The owner had assumed control of the property and had unsuccessfully attempted to re-rent it. It was held that these acts, being consistent with the owner's right to protect the property and to minimize his loss, were not sufficient to show an acceptance of the term, and that a verdict for the plaintiff was properly directed.'

No express agreement of surrender is claimed in this case, so the question is whether by some unequivocal act or acts the landlord has indicated an intention to accept a surrender. The defendants point to the testimony of witnesses Rose and Hill in which it appeared that the plaintiff talked with them about leasing the theatre following receipt of a letter from the defendants saying they were 'cancelling' the lease. As a part of the conversation, however, prospects Rose and Hill both agreed that 'there was something said about getting the balance (of the rent) from the Tegus'. Thus the plaintiff's action in attempting to lease, loses all significance as an act evidencing an intent to accept a surrender of the lease, since the intent which underlay it is manifest in the negotiations themselves. Far from disclosing an intent to accept a surrender from the Tegus, they indicate the very opposite: a determination to hold the Tegus to their obligation under the lease. Even Hill and Rose got the impression that the Tegus were to be consulted and that any offer made them (Hill and Rose) could have been 'subject to working out a deal with Mr. Tegu'.

In connection with this evidence, the defendants call our attention to certain testimony of the plaintiff given in cross examination. It went as follows:

'Q. Was there any occasion when they (Rose and Hill) came to see you about renting the theatre for three or four days? A. Yes.

'Q. About when did they come to see you the first time? A. About the same time.

'Q. What month was that? A. Early September or late August.

* * *

* * *

'Q. Were you then ready to rent the Bradford Theatre to Rose and Hill for the account or the benefit of Peter and Andrew Tegu?

* * *

* * *

'No.'

Commenting on this testimony the defendants observe: 'If the plaintiff was not attempting to lease the premises for the ...