Milling v. Becker

• Decision Date: 22 November 1880
• Citation: 96 Pa. 182
• Parties: Milling <I>versus</I> Becker.
• Court: Pennsylvania Supreme Court

Page 182

96 Pa. 182

Milling versus Becker.

Supreme Court of Pennsylvania.

November 9, 1880.

November 22, 1880.

November 9th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 163.

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Robb & Fitzsimmons, for plaintiff in error.—If Mrs. Becker was a monthly renter, then she could not remove in the middle of a month without payment of rent for a month, unless the landlord released her. If she was a tenant by the year, and left the premises after an occupancy of the same for several months, what principle of law can be invoked that will compel the landlord to submit to her unlawful acts, and compel him to diligently search for some one who would occupy the premises for the balance of her term, pay the rent she was obligated to pay, and relieve her entirely of liability. In the fifth assignment of error the court was led to say, in the point submitted by defendant's counsel, "that Milling accepted the key of the premises." There is nothing further from the facts in the case. The key was left by the tenant with the landlord, Milling, who neither received nor accepted the key. The agents of the defendant, when they paid the rent to November 1st 1878, left the key on plaintiff's table when they left, with their receipt for the said payment. It is well settled that a delivery of the key is not a delivery or surrender of the premises. There was nothing said by the defendant or her agents that by leaving the key she surrendered the premises, or that Milling, when the key was left with him, said or otherwise indicated that he accepted the surrender of the premises, and relieved the defendant from the payment of the rent.

Burleigh & Harbison, for defendant in error.—All the testimony sustains the allegation of defendant that she was a monthly tenant. During the whole of these six months, for which plaintiff now claims to hold the defendant liable, he deliberately and persistently refused to rent these premises, even when many parties came to him and desired to rent from him. He made no personal demand on defendant for the rent as it fell due month by month, or at any time, and by taking the key, by acting as if in possession, by failing to demand her rent monthly, as he had done for six years prior to this time, he caused defendant to almost forget that she formerly was his tenant. Certainly his actions had been such as to daily inform her that he had ceased to regard her as his tenant, and the many other facts in the case prove an acceptance of a surrender, show conclusively that this plaintiff's actions deceived the defendant and threw her entirely off her guard.

Mr. Justice TRUNKEY delivered the opinion of the court, November 22d 1880.

These parties disagree on the question whether the letting of the premises was by the month or year, and on this the conflicting testimony was fairly submitted. But the testimony on all controverted questions might as well not have been submitted at all, for the jury were instructed that on the case, as claimed by the plaintiff, the defendant ought to pay rent until the end of the year, unless the plaintiff was guilty of neglect and might have rented, but did not, and that he was bound to use his utmost endeavors to rent the premises for the relief of the defendant; and, if the renting was by the month, the verdict must be for the defendant. Now, the parties agreed that the plaintiff...