Ledsinger v. Burke

• Decision Date: 26 March 1901
• Parties: LEDSINGER v. BURKE.
• Court: Georgia Supreme Court

38 S.E. 313

113 Ga. 74

LEDSINGER v. BURKE.

Supreme Court of Georgia

March 26, 1901

Syllabus by the Court.

1. Where a tenant voluntarily vacates the premises before the expiration of the term, and delivers the keys to the landlord at the latter's request, who retains them, and during the term advertises the premises for rent, and implied surrender arises by operation of law, and the tenant is not liable for future rent.

2. There was no error in admitting or rejecting evidence.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by T. C. Burke against C. L. Ledsinger. Judgment for plaintiff, and defendant brings error. Reversed.

Hardeman Davis, Turner & Jones, for plaintiff in error.

Estes & Jones, for defendant in error.

FISH J.

Burke sued out a distress warrant against Ledsinger, which was met by a counter affidavit. Upon the trial there was a verdict for the plaintiff. Upon defendant's motion for a new trial being overruled, he excepted. The evidence in behalf of the defendant was, in substance, that he rented the house and lot from Burke for a year, and, being annoyed by threatening notes which were placed under his door, and by attempts to burn the house, he decided, in April, to leave it; that he requested Burke to release him from the contract, and, while Burke did not grant the request, he told defendant that he would leave the matter with Holt, Burke's agent, from whom defendant had rented the house, and said whatever Holt did about the matter would be all right; that defendant vacated the house some time in April, after paying the rent to the 1st of May; that soon after this Holt called upon him and asked for the keys of the house, which defendant delivered to him, and Holt, as the agent of Burke, placed a rent card on the house, and endeavored to rent it for Burke.

1. Among the assignments of error made in the motion for a new trial, the defendant complained that the court erred in charging the jury as follows: "In other words, Ledsinger could not rescind alone, deliver up the keys, and say, 'I will not pay rent for the property,' unless his delivery of these keys was received by Burke or his agent, and agreed upon as a delivery of possession of the property;" and in charging, "The rescission of a contract or the cancellation of a contract must be by agreement." There was no contention on the part of the defendant that there was an express agreement between him and the plaintiff, or the plaintiff's agent, that the premises should be surrendered; but his contention was that under the evidence submitted in his behalf there was a surrender of the premises by operation of law. "A surrender is either in fact, by express words, clearly manifesting the intention of the lessee to yield up his interest, or by act and operation of law, when the parties without any express surrender do some act which implies that they have both agreed to consider the surrender as made." McAdam, Landl. & Ten. p. 1263. "A surrender in law is where the parties, without any express surrender, do an act so inconsistent with the subsisting relation of landlord and tenant as to imply an intention that the lessor should be in the same situation as if an express surrender had been made. A surrender of a lease...