Higgins v. Street
| Decision Date | 04 September 1907 |
| Citation | 92 P. 153,19 Okla. 45,1907 OK 80 |
| Parties | HIGGINS v. STREET. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
If a tenant wrongfully abandons leased premises before the expiration of the term, the landlord may, at his election, at once enter and terminate the contract and recover the rent due up to the time of abandonment, or he may suffer the premises to remain vacant and sue on the contract for the entire rent, or he may give notice to the tenant of his refusal to accept a surrender, when such notice can be given and sublet the premises for the unexpired term for the benefit of the lessee to reduce his damages.
[Ed Note.-For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 790, 792, 793.]
Appeal from Probate Court, Oklahoma County; Wm. P. Harper, Judge.
Action by J. G. Street against R. W. Higgins. From a judgment for plaintiff, defendant appeals. Affirmed.
The defendant in error, Street, leased the Alamo Hotel, in Oklahoma City, by written lease for a term of one year at a rental of $200 per month to the plaintiff in error, Higgins and his associates. Higgins, with the consent of Street sublet the hotel to Mrs. Tedford, who occupied it for a few months and paid the rent to Street, except $50 which was paid by Higgins at one time when she was in default. Street consented to the subletting, but refused to accept Mrs. Tedford as his tenant or to release Higgins from payment of the rent. When Mrs. Tedford paid him rent, he receipted Higgins for the rent and gave him credit for it. Mrs. Tedford vacated the hotel before the lease expired, and notified both Street and the agent of Higgins that she had vacated the property. Higgins was in California and had left his business in the hands of his attorney, M. M. Fulton, of Oklahoma City. Mrs. Tedford notified Fulton when she left the building, and Street notified Fulton that he would hold Higgins for the rent. Higgins was notified by Fulton, but took no action in the matter. Street then took possession, made some necessary repairs, and leased the hotel on account of Higgins for $125 per month and gave him credit for this amount each month during the unexpired term. This action is by Street to recover from Higgins on the original lease the rent for the time the building was unoccupied after Mrs. Tedford vacated it and the difference between the amount Higgins agreed to pay and the amount received from the last lessee for the unexpired term of Higgins' lease, together with some expenses incurred in repairs and in reletting the premises. Issues were formed, and the case tried to a jury, and verdict returned in favor of Street for the amount claimed by him. Judgment was rendered on the verdict, and, after motion for new trial was overruled and exceptions saved, Higgins appeals to this court.
M. Fulton and J. S. Jenkins, for plaintiff in error.
Shartel, Keaton & Wells, for defendant in error.
The question of law involved is whether the action of Higgins, after the property was vacated by his subtenant, amounted to an abandonment of the lease, and the action of Street, in repairing and reletting the property to another tenant, constituted either an eviction or an acceptance of the surrender of the lease. Higgins makes both contentions: First, that the lease was surrendered at the time Street consented to the subletting to Mrs. Tedford; and, second, if the lease was not surrendered, that the action of Street in taking possession and subletting the property constitutes an eviction-in either of which cases he would not be liable for rents after the happening of such event. These questions both depend upon the particular facts in the case. Where a tenant abandons the premises, the landlord may at his election consent to the surrender, enter and terminate the contract, and recover the rent due up to the time of the abandonment; or he may suffer the premises to remain vacant, refuse to consent to a surrender, and sue on the contract at the end of the term for the entire rent; or he may give notice to the tenant of his intention to hold him for the rent, and sublet the premises for the benefit of the lessee for the unexpired term, and give him credit for the rent received to reduce his damages. It is this last rule that Street attempts to invoke in this case. While Higgins seems to have stood upon the assumption that by leasing the hotel to Mrs. Tedford, and having Street consent to such subletting, he was released from further liability, there was a surrender of the lease. In our judgment the uncontroverted testimony shows that there was neither a surrender or an eviction. Street made no agreement to release the lessee at the time Mrs. Tedford went into the building. The lessees assigned their contract to her, but Street refused to accept her as his tenant and refused to release the lessees from the payment of the rent. He took what rent she paid, receipted to her in the name of Higgins, and gave Higgins credit for the amounts paid by her. He told her, and she communicated the statement to Fulton, that he was looking to Higgins for the rent, and for that reason made out the receipts to Higgins and delivered them to her. In order to constitute a surrender there must be shown a mutual agreement between the lessor and lessee. A lease in writing constitutes a written contract, and the lessee cannot surrender it or be released from its terms without the consent of the lessor, and it is absolutely essential to the termination of the term that both the lessor and the lessee agreed to the surrender; and, when this is shown, the tenant is no longer liable. Stewart v. Sprague, 71 Mich. 50, 38 N.W. 673; Bourdereaux v. Walker, 78 Ill.App. 63; Milling v. Becker, 96 Pa. 182; Lane v. Nelson, 167 Pa. 602, 31 A. 864; Scheelky v. Koch, 119 N.C. 80, 25 S.E. 713; Livermore v. Eddy, 33 Mo. 547; Stewart v. Sprague, 71 Mich. 50, 38 N.W. 673; Detroit Pharmacal Co. v. Burt, 124 Mich. 220, 82 N.W. 893; Jones on Landlord & Tenant, § 539.
Was there an eviction? A number of the authorities hold that if the tenant leaves the premises vacant or unoccupied, and the landlord enters without his consent and relets the premises such action constitutes an eviction of the tenant and terminates the lease; and, in the absence of any other circumstances, such is the law. But there is another rule as well established and of as extensive application. In Jones on Landlord and Tenant, a recent work by an able author, the rule is stated as follows: section 549: ...
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