60 N.J.L. 548 | N.J. | 1897
The opinion of the court was delivered by
This was an action brought by the plaintiffs in error, who were the plaintiffs below, to recover from the defendant (trading as Louis Pelouze & Company) rent for certain premises in the city of Philadelphia, which had been leased to him by them. The rent sought to be recovered was claimed to have accrued from February 4th, 1893, to April 3d, 1894. The defence was that the defendant had ceased to be a tenant before the first-mentioned date.
The only assignment of error which requires consideration in the disposition of the case is that which challenges the correctness of the ruling of the trial judge in refusing to direct a verdict for the plaintiffs.
The situation at the close of the testimony was this : The plaintiffs having proved the existence of a tenancy, the defendant sought to show that there had been a surrender of his estate in the demised premises, by act and operation of law, prior to February 4th, 1893. The evidence produced
“Mr. Gailey;
“ Dear Sir—Enclosed we hand you check for one hundred and twenty-three dollars and fifty-two cents, rent in full to November 1st, 1892. As this foundry became possessed by the American Type Founders Company on November 1st, 1892, we square up our account to that date, which we trust is satisfactory. Kindly acknowledge receipt in full to November 1st, 1892.
“ Respectfully,
“Louis Pelouze & Co.”
To this letter Mr. Gailey sent the following reply to the defendant November 29th, 1892:
“ Mess. L. Pelouze & Co.;
“ Gentlemen—Your favor of yesterday, with check for $123.52, in settlement of rent to November 1st, duly received. Please accept thanks for same and inclosed find receipt. If you wish the rent hereafter to fall due on the first day of each month it will necessitate a new lease, which I will prepare and take to you for execution, unless you advise me that you wish the rent to become due as heretofore on the 4th.
“Yours truly,
“ S. M. Gailey.”
On the 13th of January, 1893, a check of the American Type Founders Company, for the rent due January 1st, was sent to the plaintiffs’ agent in a letter signed “Louis Pelouze & Co.” This letter was in the handwriting of the defendant,
This is the whole of the evidence, from which it is insisted, on behalf of-'the defendant, that a surrender of his estate in the demised premises can be implied. Are these facts sufficient to warrant the implication ?
The case most favorable to the contention of the defendant, so far as my examination of the books has disclosed, is Thomas v. Cooke, 2 Barn. & Ald. 119, in which it was held that a surrender in law could be implied where a lessee had put a third person in possession of the demised premises and the lessor had, with the lessee’s assent, accepted such third person as his tenant. This case has been followed, to some extent, both in England and in this country, but has, notwithstanding, been frequently doubted. Baron Parke, in Lyon v. Reed, 13 Mees. & W. 285, 309, in discussing that decision, says: “ It is a matter of great regret that a case involving so much importance and nicety, should have been decided by refusing a motion for a new trial. Had the case been put into a train for more solemn argument, we cannot but think that many considerations might have been suggested, which would have led the court to .pause before they came to the decision at which they arrived.” “We feel fully warranted in not extending the doctrine of that case, which is open to so much doubt, especially as such a course might be attended with very mischievous consequences to the security of titles.” In our own state, also, Chief Justice Beasley, commenting on the same case, in Hunt v. Gardner, 10 Vroom 533, says: “I think it may be safely said, that to hold that a surrender in law will be implied, or raised up, from the facts that a tenant has put a third person in possession of the demised premises, and that such. third person has been accepted as tenant, with the assent of the original tenant, is carrying the principle to the verge of mischief to titles by leasehold.”
For affirmance—None.
For reversal—The Chancellor, Chief Justice, Collins, Depue, Dixon, Gummere, Lippincott, Ludlow, Yan Syckel, Bog-ert, Hendrickson, Nixon. 12.