Banks v. Berliner

• Decision Date: 15 April 1921
• Citation: 113 A. 321
• Parties: BANKS v. BERLINER.
• Court: New Jersey Supreme Court

113 A. 321

BANKS

v. BERLINER.

Supreme Court of New Jersey.

April 15, 1921.

Action by Emilie S. Banks against William Berliner, resulting in verdict for defendant. Plaintiff's rule to show cause made absolute.

Argued November term, 1920, before GUMMERE, C. J., and BERGEN and KATZENBACH, JJ.

Oliver K. Day, of Morristown, for the rule.

Elmer King and Harold A. Price, both of Morristown, opposed.

GUMMERE, C. J. This action was brought to recover rent alleged to be due for certain premises in the town of Boonton under a written lease made by the plaintiff to the defendant for a term of two years beginning October 1st, 1916, at an annual rental of $1,800, payable in equal monthly installments, in advance. The defendant took possession of the premises at the beginning of the term and continued in the occupation thereof until the 1st of January, 1918, when he abandoned them without notice to his landlord. He paid rent up to the time of abandonment, but refused further payments thereafter, and the present suit wag brought for the rent accruing from that date until the end of the term provided by the lease.

The defendant resisted the plaintiff's claim upon two grounds: First, that the premises had become untenantable by reason of the failure of the landlord to make necessary repairs, notwithstanding the fact that by one of the covenants of the lease she was under obligation to do so, and that this constituted an eviction of the defendant by the plaintiff; second, that there had been a surrender of the term arising by act and operation of law.

At the trial of the case the court charged the jury that the failure of the landlord to make necessary repairs, although in violation of her covenant, did not constitute an eviction, did not justify the defendant in abandoning the premises, and did not release him from his obligation to pay rent, his remedy for the default of the plaintiff being an action for a breach of her covenant. The question whether or not there had been a surrender of the term arising by act and operation of law, however, the court considered was one to be determined by the jury under the facts put in evidence. The result of the trial was the rendition of a verdict of no cause of action and the verdict was accordingly entered in favor of the defendant and against the plaintiff.

Under the instructions of the trial court the verdict is presumed to have resulted from a determination by the jury that the evidence submitted showed a surrender of the term by act and operation of law; and we are to determine whether such a verdict can be supported under the proofs. It is admitted that the defendant vacated the premises without notice to the plaintiff, and that she was not aware of this action for some days afterward, when she called him up on the telephone to inquire why he had not paid the installment of rent due on January 1st, and informed him that she wanted it paid. To her request for the payment he replied, "We have vacated, no rent;" to which she answered, "You can't do that; you have an agreement with me until October, 1918, and I expect you to pay the rent." So far as the state of the case shows, this was the only communication between the parties upon the subject of the right of the defendant, on the one hand, to abandon the premises and cease to pay...