33 Minn. 441 | Minn. | 1885
Plaintiff, as assignee of one Thomas, the lessor, sues the lessees and Jacoby, their surety, or guarantor, to recover rent due ■upon the lease of a building and certain personal property situated therein. The trial court found all the issues in favor of the plaintiff.
One of the defences of Jacoby was that prior to the time for which the rent is claimed, the lease had been terminated by a surrender by the lessees, and an acceptance of the possession by the plaintiff.
The evidence is that one of the lessees brought the keys of the building to plaintiff’s agent, and left them on the table, stating that they had abandoned the premises because they were untenantable. As to whether the agent accepted them, the evidence is at least conflicting. He says he refused to do so, and told the lessee so. We are by no means prepared to concede that an abandonment of the premises by the tenant, and a delivery to and an acceptance of the keys by the landlord, would alone necessarily amount to a surrender. The acceptance of the keys under such circumstances is not so unequivocal an act as necessarily to indicate an assent on the part of the landlord that the lease should be deemed terminated. See Wood, Landlord & Tenant, § 497, and cases cited; also Nelson v. Thompson, 23 Minn. 508. But in any event there is no ground, under the facts in this case, for saying that the findings of the court were not justified by the evidence.
2. The next assignment of error is the rejection of evidence tending to show that plaintiff refused to make application to the city water board for water for the use of the tenants. One of the covenants of the lease was that the landlord was, during the term of the lease, to pay $15 a year towards the water rent, and the lessees to pay the balance. We may assume that reference was here made to
The evidence offered by defendant was properly rejected, because it did not include and was not proposed to be followed by evidence that the lessees either paid or offered to pay their share of the water rent. It is true, as counsel suggests, that a party cannot prove his entire case at once. But when a party makes an offer of testimony, the offer must be sufficiently full to enable the court to see that the' testimony offered is material. Austin v. Robertson, 25 Minn. 431.
Inasmuch as plaintiff claims, not as grantee of the real estate, but as assignee of the lease, the suggestion that Jacoby’s .guaranty did not run with the land has no force.
Order affirmed.
Wanderburgli, J., -was absent and took no part in this case.