179 Iowa 827 | Iowa | 1917
On the 1st day of July, 1915, the defendant made a general assignment to the other defendant, William Collin-
For material and labor in putting in new glass in front windows and building partition in store room, said glass having been broken by defendant during his occupancy, and the partition being necessary in order to rent said room after default of defendant, in the sum of...........$46.75
For lumber and material for partition and front.. 15.51 For painting, decorating and preparing walls in said room ....................................... 19.2(1
For paint and varnish used....................... 8.75
For carpenter work, changing show windows, ..... 8.64
Total $ 98.85
Upon this stipulation of facts, the cause was submitted to the court, and the court entered judgment for plaintiff for $120, and an order was made that the same he paid out of the proceeds of the attached property in the hands of the sheriff. From this judgment, the plaintiff appeals, and alleges that the court erred in holding that there was a surrender of the leased property to the plaintiff, and such surrender accepted by the plaintiff on the 1st day of September, 1915. Or, if the court did not so hold, then the court erred in holding that the plaintiff was 'not entitled to deduct ' from the amount of rent received from Milligan the amount which was necessarily paid by the plaintiff in preparing the room for the use of Milligan, under the stipulation. We are not favored with an argument from the appellees in this case. The record does not disclose on which theory the court held that the plaintiff was entitled to recover only $120. Either theory adopted by the court would result in the same way. * If the court held that the act of the plaintiff in taking possession of the room, repairing it and renting it to Milligan, constituted in law a surrender and acceptance of the lease, thereby terminating the lease, then, of course, the plaintiff could only recover up to that time, or for the months of July and August, and the judgment would be right on this theory, provided that the stipulation, when properly considered, shows a surrender and acceptance sufficient to terminate the lease on the 1st day of September, 1915.
If, however, the court held that there was not a surrender and acceptance of the lease by the plaintiff, but that the
If, however, plaintiff was entitled to deduct from the amount received from his new tenant, the $98.85 which he paid out to secure this new tenant, in the way of alterations and repairs to meet the needs of the new tenant, then there would be left but $21.15 of the sum received from the new tenant, to be credited to the defendant for rental for July, August, September and October, leaving a balance of $218.85 due plaintiff.
The first question that presents itself is: Does the stipulation show a surrender by the tenant and an acceptance by the plaintiff such as terminates the lease? After careful research, we find but two cases in this state .bearing upon this question: Martin v. Stearns, 52 Iowa 345, and Brown v. Claims, 107 Iowa 727. In this last case, it was said, in substance: The defendants pleaded that they notified the plaintiffs of their intention to surrender possession, and that they did surrender possession; that plaintiffs accepted the surrender by entering into another contract of lease with a third party by which they leased the whole premises for the term of one year; that the new tenant-entered into possession and 'occupied the same. It was further alleged that, by reason of the acceptance of .the sur
“Manifestly, the answer sets forth a surrender, both by agreement and by operation of law.”
The court, in passing upon this controversy, said:
“Appellants’ (plaintiffs) rely upon the case of Martin v. Stearns, 52 Iowa 345. In that case, the fact that the plaintiff, at the time of the alleged surrender, had brought his action to secure the payment of rent yet to accrue, was held of controlling importance in solving the question as to whether or not there had been a mutual agreement of surrender. * * * The sole question decided was one of fact, and it was held there was no mutual agreement.. The question here is one of pleading, and we think the. answer sets forth facts which, if unexplained, would amount not only to a surrender by agreement of the parties but also to a surrender by operation of law. Surrender by agreement of the parties is well defined in the Martín case. It is there said to be ‘a yielding up of an estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties.’ It is further said that this agreement may be implied from the acts and conduct of the parties. Surrender by operation of Irav is said to exist when the owner of a particular estate has been a party to some act having some other object than that of a'surrender, but Avliich object cannot be effected Avhile the particular estate continues, and the validity of which act he is
The demurrer being overruled, the plaintiffs replied to the answer above set forth; admitted that they received notice from the defendants of their intention to abandon the premises, and alleged that they immediately notified them that they would hold them responsible for the rent accruing under their' lease, and that thereafter they commenced the action do recover the rent. They further alleged in reply that, after so notifying the defendants, they rented the property to Dryer for the term of one year, and notified the defendants of their intention to hold them for the rent; that they re-rented the premises for the purpose of protecting their reversionary interest, ’and to reduce the damages Avhich the defendants might otherwise be compelled to pay; that the defendants never objected to this arrangement; that there was no intention on the part of the plaintiffs to release the defendants. To this reply, a demurrer was filed, raising the question that the facts recited showed acceptance and surrender, and also affirmatively showed an acceptance by operation of law. The demurrer was sustained, and error was assigned upon this ruling. Upon this point, the court said:
“May a landlord, after his tenant has vacated and abandoned the premises without cause, resume possession thereof and re-lease the same to another, after giving notice to the original tenant of his intention of .holding him for the rents reserved, and that he had resumed possession for the purpose of protecting the reversion, and had re-let them to reduce the damages which he might otherwise sustain, without being held to have created a surrender by operation of law? * * * The general rule no doubt is that, if the tenant abandons the premises and the landlord re-rents them, a surrender is established. * * * But
It will be noticed from this case that' the court seems to hold that the giving of notice to the .tenant of an intent to hold him for the rent, before the landlord takes possession and re-rents it, is a condition precedent to the right to hold him for the reserve rent, after such possession has been taken and re-renting made. It seems to be the holding that notice of intent to hold the tenant for the rent, and a re-renting simply to reduce damages, are essential to be shown, to avoid the presumption of a surrender by operation of law. While we think this rule a good one, applied generally, we do not think it a rule that ought to be applied with absolute strictness to all cases. It is a general rule that a surrender by a tenant during his term, to be effectual, must be accepted by the lessor. It must affirmatively appear that there was a surrender and an acceptance, and the burden is on the defendant to show this, in order to relieve himself of the covenants of his contract to pay rent. The conduct of the parties may be such as will clearly evince an intention to surrender to the land
“Taking possession, repairing, advertising the house to rent, are all acts in the interest and for the benefit of the tenant, and do not discharge him from his covenant to pay the rent.”
If the landlord succeeds in securing the same rental for the unexpired term which the original tenant agreed to pay, the tenant is relieved from responsibility to the landlord. If the landlord secures less in the re-renting, the first tenant’s obligation to the landlord is reduced by the amount of the rental so received. See Oldewurtel v. Wiesenfeld, 97 Md. 165 (54 Atl. 969). In that case, the contention was that the landlord could not repossess himself of the premises and re-rent them and hold the original tenant for any deficiency. The. contention practically was lhat the taking possession and re-renting worked a surrender by operation of law. The court .said:
“The best approved cases, however, assert ■* * * that where a tenant repudiates the lease and abandons the demised premises, and the lessor enters and re-lets the property, such re-renting does not relieve the tenant from
This certainly is true when it is made to appear that the entry of the landlord, after abandonment, and the re-renting, were done and made for the purpose of protecting the tenant from liability, under the covenants of his lease, for the full amount of the rental therein agreed to be paid. And especially is this true when the record discloses that there was no intention on the part of the lessor to release the tenant from the obligations of the lease to pay the reserved rent.
In Miller v. Benton, 55 Conn. 529 (13 Atl. 678), it was said:
“In any case of the abandonment of leased premises by a tenant, especially with a declaration that he will never occupy again, the landlord must have the right to take possession for the purpose of caring for the property and of leasing it to others, and is not to be prejudiced by doing so. The rescinding the contract is wholly a matter of intent on his part, and that intent will not be inferred from his merely taking possession, especially when it is found that he did so with no intent to relinquish his rights under the lease.”
The same doctrine is held in Auer v. Hoffmann, (Wis.) 112 N. W. 1090. For a full citation of the authorities bearing on this question, see Higgins v. Street, (Okla.) 92 Pac. 153 (13 L. R. A. [N. S.] 398). See also Respini v. Porta, (Cal.) 26 Pac. 967 (23 Am. St. Rep. 488); Alsup v. Banks, (Miss.) 24 Am. St. Rep. 294; Auer v. Penn, (Pa.) 44 Am. Rep. 114; Marshall v. John Grosse Clothing Co., (Ill.) 56 N. E. 807.
These cases hold that, where the premises are abandoned by the tenant, without the fault of the landlord, the landlord may re-enter and re-rent the premises, crediting the former tenant with the proceeds, and the taking possession by the landlord does not relieve the tenant from
A contract having been fully made between parties, one party cannot rescind the contract on his own motion. To, rescind a contract requires a meeting of the minds of the parties, just the same as in the making of an original contract. One party may so conduct himself that he gives to the other the right to rescind — the right to call the contract off; but the other is under no obligation to do this, but may, notwithstanding the hostile conduct of the other, still hold him to the terms of his original contract.
The case is, therefore, reversed and remanded, with instructions to enter, judgment in favor of the plaintiff for that sum. — Reversed and Remanded.