34 Neb. 455 | Neb. | 1892
On the 24th of August, 1885, Hansen leased front Ross Gamble a certain store-room in the city of Kearney for the term of two years from September 24 of that year, at the rental of $65 per month, payable monthly in advance. He remained in possession of said room until about July, 1886, when he sold his stock of goods to Crow & Monroe, who continued in business in that room until October, 1886, when they sold the stock of goods to one McBeth, who continued to occupy the room until the 18th of January, 1887. The rent was paid up to the time Crow & Monroe sold out. After McBeth vacated the premises they seem to have been unoccupied during a large part of the remaining portion of the lease, although the plaintiff collected $90 from one George for rent. At the expiration of two years from the date of the lease it is claimed that there still remained due and unpaid thereon the sum of $443.95. On the 26th of August, 1885, Gamble conveyed the premises in question to the plaintiff. The defendant in error seems to have transacted his business at the plaintiff’s bank, and the bank having a note of Hansen’s which he had deposited as collateral security for another matter, it collected the same, amounting to $273.65, and applied the amount so collected upon the rent in ques-
Two questions are presented by the record, viz.: First, Was the lease from Gamble to the defendant in error surrendered to the bank at or about the time Hansen sold his stock of goods? and second, Could the bank apply the proceeds of a note left with it as collateral upon a specific matter and apply it upon a distinct and independent claim not connected with the business of the bank ?
In Wheeler v. Walden, 17 Neb., 122, it was held that a surrender of a lease by operation of law may be effected by any agreement between the parties that the term shall be terminated which is unequivocally acted upon by both. It has been held that an actual and continued change of possession by the mutual consent of the parties is a surrender by operation of law, whether the possession is delivered to the landlord himself, or to another for him. (Hall v. Burgess, 8 D. & R. [Eng.], 67; Reeve v. Bird, 1 C. M. & R. [Eng.], 31; 4 Wait’s Act. & Def., 212.) So the acceptance of possession by the landlord and accepting an under tenant or an assignee ás his tenant, followed by an actual possession by the latter, will operate as a surrender. (Clemmens v. Bloomfield, 19 Mo., 118; Shepard v. Spaulding, 4 Metc. [Mass.], 416; Schieffelin v. Carpenter, 15 Wend. [N. Y.], 400; Grimman v. Legge, 8 Barn. & Cress. [Eng.], 324; Witman v. Wotry, 13 Wis., 638; 4 Wait’s Act. & Def., 213.) The case of Schieffelin v. Carpenter contains an elaborate review of the authorities up to the year 1836, and clearly establishes the rule that a written lease may be surrendered by any agreement between the parties which both have acted upon.
Affirmed.
