Snowhill v. Reed

• Decision Date: 28 February 1887
• Parties: SNOWHILL and others v. REED.
• Court: New Jersey Supreme Court

10 A. 737

49 N.J.L. 292

SNOWHILL and others

v. REED.

Supreme Court of New Jersey.

February Term, 1887.

On certiorari to Monmouth common pleas.

The plaintiffs made a lease to defendant of certain premises for the term of one year. The lease contained a covenant that the tenant, on the expiration of the said lease, would deliver up the possession of said premises to the lessors or their legal representatives in as good repair as the same were at the commencement of the lease, reasonable wear and tear and damages by fire, war, and trespass only excepted. The term would have ended on October 1, 1884. On August 29, 1884, the lessors and lessee entered into an agreement by which it was agreed that in consideration of the tenant relinquishing possession on the first day of September, 1884, the landlords agreed to release the tenant from the payment of a portion of the rent which the latter party had covenanted to pay. The tenant was, by said agreement, permitted to retain use of a room in said property in which to store his goods for such reasonable time as would permit him to secure other apartments. In pursuance of this arrangement the said premises were surrendered on September 1, 1884. It was proved on the trial that the tenant, while in possession, had removed and destroyed three counters and some shelving fixtures; that he had painted a sign in large letters on the building, and had permitted the walls of the room to be stained by heaping tobacco against them. After the surrender, the plaintiffs notified the defendant to put the premises in the same condition as they were at the commencement of the lease, and afterwards, on his failure to do so, sued the defendant for a breach of the covenant contained in the lease. The court of common pleas found for the defendant.

Alan H. Strong, for plaintiffs in certiorari. Samuel A. Patterson, for defendant.

REED, J. It is first objected by the counsel for the plaintiffs in certiorari that the court below admitted evidence improperly. This was oral testimony, on the part of the defendant, to the effect that while the negotiations for the agreement to surrender were in progress, one of the plaintiffs said that if the defendant would let the plaintiffs have the property, they would not ask him to put back the counters and shelving. This testimony was improperly admitted. The writing itself was complete upon its face. It expressed clearly upon what terms the surrender should be made. The parol testimony engrafted a new term upon the written agreement, and for this purpose its reception was illegal. Naumberg v. Young, 44 N. J. Law, 331. This error will lead to a reversal, unless by the arrangement to surrender the defendant is relieved from a performance of the covenant to leave the premises in as good repair as they were at the commencement of the lease. The term by the lease was to run from October 1, 1883, to October 1, 1884. Had there been no accepted surrender, the covenant would have been performed by leaving the premises in repair on October 1st, the end of the term. The tenant was not bound to keep the premises in repair during the continuance of the term but only to leave them in good repair at the end of the term. Nor is it deniable that a surrender terminates the tenant's estate, and with it all covenants contained in the lease, and operates to relinquish all rights of action for breaches which did not occur during the life of the lease. Piatt, Co v. 585; Deane v. Caldwell, 127 Mass. 242.

The question here presented is whether the covenant was broken during the life of the lease. If it could not be broken until the end of the term named in the lease, namely, at the end of one year, then it follows that it was at that time impossible for the tenant to perform. By the surrender he was out of possession, and by the acceptance of the surrender the landlord had assented to an extinguishment of the covenant before any breach. But I do not regard the covenant as one to leave the premises in repair at the end of the period of time mentioned in the lease. The time for performance was the time of expiration of the lease. The lease expired by reason of the surrender as effectually as it would have expired by the efflux of time without a surrender. When, therefore, the defendant entered into an arrangement for a surrender, the event upon which the performance of his covenant was dependent was shifted from October 1st to September 1st. This conclusion seems to accord with the result in the case of Austin v. Moyle, Noy, 118, cited at length in Piatt on Covenants. A. leased to B., for 10 years, and B. covenanted to leave four acres of the ground fallowed and plowed at the end of the term, and in the lease there was a proviso that if B. mistake his bargain he may surrender his estate on a year's warning. B. afterwards surrendered accordingly, and it was adjudged by the court that the surrender was no dispensation of the covenant, but otherwise if the lessee had covenanted to leave the four acres fallowed and plowed at the end of the 10 years, for then the acceptance of the surrender before the expiration of the 10 years would have made it impossible for the tenant to perform his covanent. In the above case it is true that the option of a surrender before the 10 years is contained in the lease, and so this ending of the term may be said to have been in accordance with the terms of the lease itself. But I am unable to see in what way the insertion of the right to surrender in the lease affects the principle. The construction of the covenant still remains to be determined by the inquiry whether the tenant was to perform at the end of the period named in the lease, or at the expiration of the tenant's term. If the former, then a surrender before the arrival of the end of the period named discharges the covenantor. If the latter, then a surrender which itself ends the term fixes the time of the surrender as the time for performance.

I construe the present covenant to bind the tenant, not to leave the premises in repair at the end of one year, but whenever the lease shall end, and that it ended, within the meaning of the covenant, by the surrender.

The judgment below should be reversed.

Depue, J., (dissenting.)

The plaintiffs, by a lease under seal, demised certain premises to the defendant for the term of one year from October 1, 1883. On the twenty-ninth of August, 1884, the parties concluded an agreement in writing, indorsed on the lease, for the surrender of the premises, in these words:

"August 29, 1884.

"In consideration of David B. Reed, the within-named lessee, relinquishing possession of the within-described premises to said lessors, on the first day of September, A. D. eighteen hundred and eighty-four, the said lessors do hereby agree to release said Beed from the payment, on within lease, of twenty and eighty-five hundredths dollars, leaving a balance due on within lease by said Reed of forty-one and sixty-five hundredths dollars. The said lessors, however, to allow said Reed to retain...