Hayes v. Goldman

• Decision Date: 21 February 1903
• Citation: 72 S.W. 563,71 Ark. 251
• Parties: HAYES v. GOLDMAN
• Court: Arkansas Supreme Court

72 S.W. 563

71 Ark. 251

HAYES v. GOLDMAN

Supreme Court of Arkansas

February 21, 1903

Appeal from Jackson Circuit Court, FREDERICK D. FULKERSON, Judge.

Reversed.

STATEMENT BY THE COURT.

Goldman was the owner of two store buildings in the town of Newport known as "racket stores." On the 30th day of March 1899, he leased these buildings to one Hayes for a period of nine months from the 30th day of March, 1899, until the 30th day of December, 1899, for a monthly rental of $ 75, to be paid in advance. The lease gave Hayes the option to continue the lease for the period of one year from the 30th day of December, 1899, to the 30th day of December, 1900, at the same rental and on the same terms.

Goldman lived in St. Louis, and this contract was made and signed by L. Minor, his agent at Newport. On the 30th day of December 1899, Hayes prepared and sent to the office of Minor the following note:

"MR L. MINOR,

"Agent J. D. Goldman, City:

"I have decided to give up the two racket stores. Will not want them for 1900. Would, however, like to retain them for the month of January.

[Signed]

JOHN C HAYES."

This notice was carried by an employee of Hayes to the office of Minor, and there delivered to one Ferguson, a clerk in Minor's office. Ferguson read the notice and then remarked: "That is all right." Without taking further steps to notify Minor, Hayes remained in the stores. On the first of January, 1900, he paid the rent for January in advance. About this time he was told that Minor considered that he had elected to keep the property under his contract for another year. He protested against this view of the matter, and declared his intention of holding only during the month of January. About the last of January he moved out of the stores, and returned the keys to Minor. Before Hayes moved out, Goldman, the owner, learning that Hayes intended to abandon the stores, agreed with one Stewart, acting for the Newport Builder & Supply Company, that he would rent the stores to the company for the remainder of the year at a rental of $ 60 per month, and told him that Minor would reduce the contract to writing. When Hayes moved out of the stores, he, as before stated, returned the keys to Minor, and shortly afterwards Stewart and his company moved in.

After the end of six months Goldman brought this suit to recover the rent of that period from Hayes. Hayes for answer set up, first, that the plaintiff had consented that he might occupy the premises during the month of January, and quit at the end of that time; second, that about the last of January he had surrendered the possession of the stores to the agent of plaintiff, and that the surrender was accepted, and that he was thus released from further liability under said lease.

After hearing the evidence the circuit court directed a verdict for plaintiff in the sum of $ 75, that being the amount due under the Hayes contract, if that was still in force, less the amount received from Stewart. Judgment was entered accordingly, and defendant appealed.

Judgment reversed and new trial ordered.

Gustave Jones, Jos. W. House and M. House, for appellant.

There was a sufficient delivery of the notice. 37 N.Y.S. 374. Notice was really unnecessary. 53 A. 103; 1 Tayl. L. & T. § 332. After notice appellant became only a tenant at will. 47 A. 534; 1 Wood. Landl. & T. § 18. The notice was in apt time. 93 Me. 185. When the tenant surrenders possession, and the same is accepted by the landlord, the lease and all liability for further rent are extinguished. 92 Ind. 82; 8 B. & C. 324; 1 E. D. Smith, 147; 11 Mass. 494; 16 Me. 212; 96 Mass. 176; 30 N.Y. 462-5; s. c. 86 Am. Dec. 394; 12 C. B. (N. S.) 334; 39 Mo. 115-119; 19 Barb. 136; 6 Wend. 569; 78 Wis. 345; 74 Wis. 464; Tied. Real Prop. § 198; 25 Am. St. 145; 145 Ill. 238; 101 Ind. 95; 62 N.J.L. 779; 2 Tayl. L. & T. § 473; Washb. Real Prop. § 549; 96 Mass. 180; 101 Ind. 95. It would be inequitable and unjust to hold appellant liable for future rents after surrender of possession. 6 M. & Gr. 671; 90 Cal. 507; 16 Me. 212.

M. M. Stuckey, for appellee.

Appellant's contract terminated on December 30th, 1899, and he was holding over and had begun a new term when he gave notice. The language "until December 30, 1899" is exclusive in its meaning, and any holding beyond that time started a new period. Bouv. Dict.; 26 Am. & Eng. Enc. Law, 11; 39 Barb. 9; 39 Am. Dec. 692; 17 N.Y. 502; 19 Misc. 524; 18 Am. & Eng. Enc. Law (2d Ed.) 405; 61 Ark. 380; 33 Ark. 627; 65 Ark. 471; Tied. Real Prop. § 172. The landlord has the right to elect to hold the tenant to his renewed contract. Tied. Real Prop. § 172; Wood. L. & T. 20, 23; 51 N.Y. 309; Woodf. Landl. & T. 218; 1 T. R. 162; 4 Cow. 349; 2 Wend. 507; 1 Den. 113; 11 Barb. 33; 5 Robt. 248; s. c. 6 Id. 441; 4 N.Y. 270; 19 H. & W. 29; 1 Daly, 384. To discharge the tenant, the evidence must be such as to warrant the presumption that the landlord intended to resume possession. 4 Phila. 57; 69 Pa.St. 316; 1 Daly, 485.

OPINION

RIDDICK, J., (after stating the facts).

There were two questions at issue in this case. The first was, whether Hayes had elected to extend his tenancy for a term of 12 months from December 30, 1899, as under his contract he had the right to do. Granting that there was such an election on the part of Hayes, the next question is whether there was subsequently a surrender of such term.

The first question, we think, must be answered in the affirmative, for the evidence does not show that the notice which defendant claims that he gave terminating the tenancy was ever delivered to either Goldman or his agent, Minor. As defendant held over after the expiration of his term without any consent on the part of the plaintiff, except as shown in the contract, it must be presumed that he was holding under the contract, and had elected to hold the premises for another year. On this point we agree with the argument of counsel of Goldman, in whose brief the decisions bearing on the question are collated. The contention of appellant in reference thereto is overruled.

The contention of the appellant on the second question presented is that there was evidence tending to show that there was a surrender of the lease, and that the circuit judge erred in refusing to submit that question to the jury. Under the evidence this raises a more difficult point for our consideration.

A surrender has been said to be the yielding up of an estate for life or years to him who has an immediate estate in reversion or remainder, whereby the estate for life or years is by mutual agreement drowned in the estate in reversion or remainder. 18 Am. & Eng. Enc. Law (2d Ed.) 355. A surrender may be made by agreement of parties or by operation of law, and when made the estate of the lessee terminates, and the relation of landlord and tenant cases. There was no express agreement for a surrender in this case, and the only question we have is whether there was evidence sufficient to go to the jury on the question as to whether there was a surrender by operation of law.

Now, any acts which are equivalent to an agreement on the part of a tenant to abandon, and on the part of the landlord to assume possession of the demised premises on his own account, amount to a surrender of the term, by operation of law. 1 Washburn, Real Property, (6th Ed.) § 739; Williamson v. Crossett, 62 Ark. 393, 36 S.W. 27; Kneeland v. Schmidt, 78 Wis. 345, 47 N.W. 438; Talbot v. Whipple, 96 Mass. 177; 18 Am. & Eng. Enc. Law, (2d Ed.) 364.

An express agreement to accept the surrender need not be shown, for the landlord's assent may be implied by operation of law from the manner in which he uses the property after its abandonment by the tenant. 2 Wood, Landlord & Tenant, (2d Ed.) 1173.

If the landlord takes charge of the property after the tenant has abandoned it merely to protect it from injury, or if, knowing that the tenant does not intend to return, he rents it for the account of the tenant, these acts may not show assent on his part, but if after an abandonment he takes possession, and rents the premises on his own account, this is conclusive evidence of a surrender. Williamson v. Crossett, 62 Ark. 393, 36 S.W. 27; Underhill v. Collins, 132 N.Y. 269, 30 N.E. 576, and other cases cited above.

The law on this point is stated in a recent edition of a work on the subject as follows: "When a tenant abandons premises, and returns the keys to the landlord, the latter may accept the keys as a surrender of possession, thereby determining the tenant's estate, and relet the premises on his own account, or he may accept the keys and resume possession conditionally by notifying the tenant or other person returning the keys that he will accept the keys but not the premises, and relet them on the tenant's account, in which case the tenant may be held for any loss in rent caused by his abandonment and the subsequent reletting." 2 McAdam, Land. & Ten (3d Ed.) 1283.

If the case of Meyer v. Smith, 33 Ark. 627, holds that the landlord may on abandonment take possession and relet on his own account and still hold the tenant on his contract, it is not supported by any of the decisions, and is overruled by the case of Williamson v. Crossett, supra. But, as we understand that case, it means that the landlord may take possession for the tenant, and rent for him without releasing the tenant form his contract.

Now, in this case the tenant abandoned the premises, and returned the keys to the agent of the landlord, and the landlord took possession, and rented the premises to another. It is plain that if he took possession for himself, and afterwards rented these stores on his own account, he could not afterwards claim that Hayes was still in possession as his tenant, for...