In re Orne

| U.S. Cir. Ct. | Apr 28, 1882

McKennan, C. J.

The argument of appellant’s counsel is ingenious and impressive, and if his premises are conceded, his conclusions cannot be gainsaid. If the lease between Orne and Fisher’s trustees was surrendered, with intent to terminate it, the trustees could not assert any claim for a subsequent alleged breach of it, for the obvious reason that a contract, canceled by agreement of the parties, ceases to exist thereafter, and is not susceptible of any breach. And so, if the trustees evicted their tenant, their right to demand and recover rent from him was thereby suspended. But there was neither an eviction of the tenant nor a surrender of the lease. Practically there was an abandonment of the leased premises by the tenant. He was in default for rent accrued, confessedly became insolvent and unable to pay the rent as it might fall due, and transferred his leasehold interest, and the possession of the leased premises, to his assignee. The assignee went into possession, paid the rent in arrear under the constraint of a distress warrant, retained possession for about two months, paying the rent for that period, but declined to accept the lease, and then sent the keys of the premises to the landlord, by whom they were accepted, and to whom one week’s notice of an intention to vacate the premises had been given, in pursuance of an understanding to that effect.

Now the fair import of these circumstances is that the tenant did not intend to keep the premises, or to pay the accruing rent, or to observe his covenant, and that he actually vacated and abandoned the premises without the consent of the landlord. Certainly the landlord did not agree to a termination of the lease, and it is clear to me that his acts do not warrant such an implication. In such an emergency he was not bound to stand listlessly by, and thus expose his property to the peril of dilapidation and injury, but in the interest of both parties he might resume possession of it, take proper care of it, and manage it for the benefit of his defaulting tenant. This is what he did do, and he cannot, therefore, be held to have intended to absolve his tenant from the obligation of his covenant, and from liability for damages resulting from his breach of it.

I am therefore of the opinion that proof of damages, measured by the amount of the rent which the tenant covenanted to pay for the remainder of the term, less the sums received by the trustees for intermediate leases to others, was properly allowed, and that this appeal must be dismissed with costs, and it is so ordered.