53 Pa. Super. 481 | Pa. Super. Ct. | 1913
Opinion by
When the defendant voluntarily abandoned the demised premises during the term, as he himself declares he did, he of course did not relieve himself or his sureties from the obligation to perform the covenant to pay rent. That liability could be discharged only by the act of the landlord, either in accepting a surrender of the lease or doing some act which had the legal effect of an
It has uniformly been held that where a tenant, during the term, abandons the demised premises, the landlord is not bound, under the penalty of loss of his right to receive rent, to permit the tenement to remain wholly unoccupied with the consequent possible or probable loss of his insurance, destruction by waste, or other like injuries. The mere fact that he resumes possession is not of itself a sufficient foundation upon which to predicate either an acceptance of a surrender or an eviction. It must further be found on evidence that such resumption of possession is not merely for the protection of the property during the absence of the tenant, but is adverse to a reoccupation of it by him and a renewal of the relations created by the lease. So too, if during the period of abandonment the landlord should make some repairs of the demised premises, or even sublet to another, these acts would be in the interest of the tenant who had committed a breach of the covenants of his lease, and would tend to minimize the damages which he would otherwise be liable to pay. This is the doctrine of all of the cases, as a few short excerpts will sufficiently show. In Pier v. Carr, 69 Pa. 326, it was said: “Taking care of the key of the house and repairing the floor after the tenant had voluntarily left, were no eviction. He would have been entitled to enter if he had returned — but he did not return. He was neither put out nor sold out by the plaintiff. If the acts of the plaintiff would have been no defense in defendant’s favor, it would not avail the surety, and we are very clear they would not have availed him.” In Smucker v. Grinberg, 27 Pa. Superior Ct. 531, Rice, P. J., thus stated the law on the subject: “Was there an acceptance of a surrender or an eviction? A surrender of demised premises, in order to be effectual to release a tenant from payment of rent, must be accepted by the lessor, and the burden of proof
The plaintiff in the present case was the vendee of the landlord who had entered into the lease. By his purchase of the demised property he took the place of the former landlord and was entitled to receive the rent. When he found the premises vacated by the tenant he went and secured the key from the person with whom it had been left. He also went to the tenant to secure either the lease itself or a copy of it, the evidence being in some conflict as to this. He entered into negotiations with a new tenant for the premises, on certain conditions as to securing a license which were not afterwards fulfilled, and he made some improvement or repairs to the property of a more or less extensive character.
We are not persuaded the fact that the tenant had become a bankrupt at or about the time he abandoned the demised premises has much significance in the disposition of the question at issue between the parties. The fact of the bankruptcy only appears in a casual way in this record. There is no evidence that the lease of the alleged bankrupt was considered by his trustee or his creditors
With the correction of the material error disclosed in the fourth assignment, the remaining matters complained of will cease to be important, and, as we view it, merit no further consideration at this time.
Judgment reversed and a venire facias de novo awarded.