Scheelky v. Koch

• Decision Date: 03 January 1896
• Citation: 25 S.E. 713,119 N.C. 80
• Court: North Carolina Supreme Court
• Parties: SCHEELKY. v. KOCH.

25 S.E. 713

119 N.C. 80

SCHEELKY.

v.KOCH.

Supreme Court of North Carolina.

Oct, 13, 1896.

Landlord and Tenant—Lease — Damages for Breach.

Where leased premises are vacated by the tenant before the expiration of his term, the fact that they are re-leased by the landlord will not relieve the tenant from liability for the damages sustained by the breach of the contract, unless it is shown that the landlord assented to the surrender.

Appeal from superior court, Craven county; Graham, Judge.

Action commenced before a justice of the peace by C. J. Scheelky against W. F. Koch. Judgment in the superior court for plaintiff, and defendant appeals. Affirmed.

The judgment of the court, which by agreement contains the facts found, is as follows: "This cause coming on to be heard before Graham, J., and it having been agreed by the parties that the judge might find both the law and the facts, his honor found the following facts: That the defendant leased from the plaintiff a certain lot of land in the city of Newbern for the term of one year from the 1st day of February, 1894, with the privilege of one year more, at the monthly rate of ten dollars; that on the 28th day of February, 1895, the defendant vacated the said premises, and paid the rent therefor up to March 1, 1895; that onthe—— day of March, 1895, the plaintiff took possession of the premises, and rented the same to one J. B. Watson, and continued in the possession thereof up to the commencement of this action; that the plaintiff received as rent for the said premises for the year ending February 1, 1896, from the various parties to whom they had been rented, the sum of $76. Upon the foregoing findings of facts, it is found as a conclusion of law that the plaintiff is entitled to recover in this action $44.98, with interest from the 1st day of March, 1896. it is thereupon ordered and adjudged that the plaintiff recover of the defendant and his surety, D. F. Jarris, on his appeal bond, said sum, and the costs of this action, to be taxed by the clerk."

M. D. W. Stevenson and Clark & Guion, for appellant.

FAIRCLOTH, C. J. "if the lease had been surrendered with the understanding that it should be canceled, " the plaintiff could not recover. Everett v. Williamson, 107 N.C. 213, 214, 12 S. E. 189. The case stated fails to show any such understanding or consent on the part of the plaintiff. Affirmed.