Stern v. Thayer

• Decision Date: 02 January 1894
• Docket Number: No. 8490.,8490.
• Citation: 56 Minn. 93
• Parties: DANIEL S. STERN <I>vs.</I> FRANK THAYER.
• Court: Minnesota Supreme Court

Page 93

56 Minn. 93

DANIEL S. STERNvs.

FRANK THAYER.

No. 8490.

Supreme Court of Minnesota.

Argued by appellant, submitted on brief by respondent, November 22, 1893.

Affirmed January 2, 1894.

Appeal by defendant, Frank Thayer, from an order of the District Court of Blue Earth County, M. J. Severance, J., made April 13, 1893, denying his motion for a new trial.

On December 1, 1890, the plaintiff, Daniel S. Stern, leased to defendant, an architect, two rooms on the second floor of his building in Mankato for three years for $20 a month, the rent payable monthly in advance. Thayer covenanted not to assign the lease or sublet the premises without the written consent of Stern. In case the rooms were abandoned or vacated and so remained for fifteen days, Stern was empowered to relet at his discretion and apply upon the rent any money received. Thayer entered and occupied the rooms and paid rent sixteen months to April 1, 1892 and then abandoned them and notified Henry E. Hance, plaintiff's agent and sent him the key. Hance was absent and the bearer left it in his office. This action was commenced October 15, 1892, to recover seven months rent falling due prior to that time. Thayer answered that he surrendered the premises on March 31, 1892, and that Stern accepted the same and had since had the possession thereof. The issues were tried December 23, 1892. When the evidence was all in, the Judge, referring to 1878 G. S. ch. 41, § 10, directed the jury to return a verdict for the plaintiff for $140 and interest, $4.57, and it was done. Defendant moved for a new trial and being denied appealed.

Pfau & Young, for appellant.

Loren Cray, for respondent.

COLLINS, J.

In 1890 these parties entered into a written contract, whereby plaintiff demised and leased to defendant certain office rooms for a period of three years. The latter took possession and occupied the premises until March 31, 1892, when he vacated. This action was brought to recover for rent subsequently accruing under the lease, and at the conclusion of the trial a verdict was ordered and rendered for plaintiff.

By the terms of the lease the lessee was prohibited from assigning the same, and from letting or subletting any part of the premises; and, should the rooms be vacated and remain unoccupied for fifteen days consecutively, he requested and authorized the lessor to re-enter, and to re-rent them, applying the moneys received towards the rent accruing under the lease. These conditions must be kept in mind when considering the testimony upon which the trial court acted when directing a verdict; and, as the lease was in writing, necessarily, and created an interest in lands for a period exceeding one year, it could only be surrendered by a written instrument executed with the formalities attendant upon the execution of the lease, or by operation of law. 1878, G. S. ch. 41, § 11. There was no attempt to show a written surrender, so the only question before us, assuming, as we do, that there was proof of Hance's agency, is, was there evidence introduced in defendant's behalf tending to prove a surrender by operation of law, which can only take place where the owner of a particular estate has been a party to some act, the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate had continued? Smith v. Pendergast, 26 Minn. 318, (3 N. W. 978,) and cases cited. As will be seen by this definition a surrender by operation of law can only be built up by invoking and relying on the doctrine of estoppel. The effect of a surrender of this character is to terminate the relation of landlord and tenant, and with it all of the obligations of the parties to that relation. When there arises a condition of facts, voluntarily assumed, incompatible with the existence of the relation of landlord and tenant between parties who have occupied that relation, there is a surrender of the lease by operation of law. Bowen v. Haskell, 53 Minn. 480, (55 N. W. 629.) Any acts which are equivalent to an agreement on the part of a tenant to abandon and on the part of a landlord to resume possession of demised premises amount to a surrender of a term by operation of law. Talbot v. Whipple, 14 Allen, 177. In that case the tenant left the premises with a manifest intent to abandon, and the landlord took possession with the manifest design of accepting the abandonment. All such acts, however, as bind the parties to a surrender of this character must operate by way of estoppel, and must be acts of notoriety. Lyon v. Reed, 13 Mees. & W. 285. For illustration as to what acts may be sufficient, we have the case of a lessor taking unqualified possession of demised premises, and dealing with them in a way wholly inconsistent with the continuance of an already existing and unexpired term. Nelson v. Thompson, 23 Minn. 508. See, also, Dayton v. Craik, 26 Minn. 133, (1 N. W. 813;) Smith v. Pendergast, supra. And for further illustration and application of the rule to acts, see 2 Tayl. Landl. & Ten. (8th Ed.) ch. 11, § 5; Wood, Landl. & Ten. § 496 et. seq., and cases cited in notes, particularly Amory v Kannoffsky, 117 Mass. 351; Witman v. Watry, 31 Wis. 639; Coe v. Hobby, 72 N. Y. 141; Hegeman v. McArthur, 1 E. D. Smith, 147; Auer v. Penn, 99 Pa. St. 370; Dodd v. Acklom, 6 Man. & G. 672. The three last referred to are cases in which the effect...