The opinion of the court was delivered by
The leading case on constructive eviction is Upton v. Townend, &c., 17 C. B. 30, accepted by this court as declarative of the law in Morris v. Kettle, 28 Vroom 218. In that ease, Chief Justice Jervis (at p. 64) said that eviction must be “not a mere trespass, but something of a gravе and permanent character done by the landlord with the intention of depriving the tenant of the'enjoyment of the demised premisеs;” and Mr. Justice Willes (at p. 72) more fully and accurately defined it as “an аct of a permanent character done by the landlord in оrder to deprive, and which had the effect of depriving, the tenаnt of -the use of the
Under the same case of Upton v. Townend, the аlterations recited might constitute an eviction, but, as appliеd to the tenants’ abandonment of the demised premises, their effеct was rather that of an acceptance of a surrеnder of the term. By the statute of frauds such a surrender must be in writing, unless arising by act and operation of law. Gen. Stat., p. 1602, § 2. The new demise to Sehluer, standing alоne, would not effectuate a surrender, for a re-letting was exрressly authorized if the premises became vacant or desеrted, and, as it appears that the rent secured for the unexрired term was all that was procurable, the tenants could not сomplain that the demise was made to extend beyond that time. The new lease, with its peculiar provisions, like the previous letter to Yost, might be evidential of the intention of the landlord in his conduct after re-entry, but was not, of itself, an acceptance of a surrender by the tenants. This case must turn on the remodeling of the building after its аbandonment by the tenants. We need not consider what would have been the effect of the radical changes made had there been no provi.sion in the lease on the subject, though there is judicial opinion that even in such case the tenancy would have been legally determined. Tayl. Land. & T., § 515; Wood L. & T. (2d ed.), § 494, and cases cited. In the case in hand the parties,, by their own agreement, limited the rights of the landlord aftеr, as well as before, an abandonment of the demised premisеs. He was to have the right to enter and make such repairs as should be necessary for the preservation of the premises. 'When the plaintiff did more than that he con
When the minds of the partiеs to a lease concur in the common intent of relinquishing the relation of landlord and tenant, and execute this intent by' acts which are tantamount to a stipulation to put an end thereto, there, аt once, arises a surrender by act and operation of law. Talbot v. Whipple, 14 Allen 177, 180, and cases cited; Woodf. Land. & T. 302.
Accordingly, to the first question propounded by the Circuit Court, we answer that there was no eviction, and to the second that the particular acts recited in the question did constitute such a surrender in law of the demised premises as relieves the defendants from all liability for the rent sued for in the pending action.