Hanham v. Sherman, 114 Mass. 19

Hanham v. Sherman

114 Mass. 19 | Mass. | 1873

Colt, J.

The sole question at the trial of these cases was, whether there had been an accepted surrender of the lease from Sherman to Hanham. The evidence was in direct conflict. Han-ham testified that it was surrendered in pursuance of a verbal agreement with Sherman, who accepted the surrender and put in another tenant. Sherman denied this, and introduced evidence to prove the contrary. In the first paragraph of his first request, Sherman asked the court to rule that in the absence of any agreement in writing, the facts claimed and in evidence were not sufficient to terminate the lease. This was properly refused in view of the evidence of a verbal surrender and acceptance, sufficient to justify a verdict on that ground. Talbot v. Whipple, 14 Allen, *23177, 180. The last part of the first request assumes a state of facts as existing, about which there was a conflict in the testimony, and was rightly refused. The instructions upon this point left it to the jury to find the disputed fact, whether there was a meeting of the minds of the parties, and whether the lease was given up in pursuance of the agreement. ^They were expressly told that a surrender and acceptance was necessary, and that any acts which would be equivalent to an agreement on the part of the tenant to abandon, and on the part of the landlord to resume possession of the demised premises, would amount to a surrender by operation of law.

A judgment recovered by Sherman in the Municipal Court on default, for an instalment of rent due under the lease for occupation prior to the alleged surrender, was put in evidence by him. He contended that such a judgment was inconsistent with the release of all past rent, which formed part of the agreement for surrender to which Hanham had testified, and that it was conclusive not only that the past rent had not been released, but that such an agreement had not been made, and that it was evidence that the lease had not been surrendered at the time that action was brought. But the case on trial in favor of Sherman was for an instalment of rent due after the alleged surrender. The instructions requested in regard to the effect of the judgment could not be properly given, because a judgment for rent due prior to a given day would have no bearing on the question whether the lease had been given up and terminated after that day. Nor upon the pleadings in that suit, can the record be conclusive evidence that Sherman had not released Hanham, prior to the commencement of it, from all rent then due,^because the release was not set up, and the question whether such release had been given was not tried. The jury were instructed to give the judgment consideration and such weight as it was entitled to upon the matters in issue, and this was sufficiently favorable. It was admitted in evidence as a fact. It was not necessary for the judge to explain its weight or significance. Burlen v. Shannon, 99 Mass. 200. Bodurtha v. Phelon, 13 Gray, 413.

Exceptions overruled