Rees v. Lowy

57 Minn. 381 | Minn. | 1894

Mitchell, J.

The plaintiff leased to defendant certain premises for a term of two years from October 1,. 1892, at a specified yearly rental, payable monthly in advance. The lease provided that the lessor might cancel and annul it at once, if it should be assigned without his written consent; also, that, in case of default on part of the lessee in any of its covenants or conditions, the lessor might, at Ms option, re-enter, and take possession of the premises, without such re-entry working a forfeiture of the rents to he paid or covenants to be kept by the lessee for the full term of the lease.

This action is to recoArer the rent for the month of June, 1893. The defense is that on April 8, 1893, the defendant, with the written consent of the plaintiff, assigned the lease, and surrendered possession, to one Barge, Avhom plaintiff accepted as his tenant in defendant’s place, and released the latter from all liability on the lease.

The court found against defendant on this issue, and ordered judgment for plaintiff, but, on motion of defendant, granted a new trial, from Avhich order plaintiff appeals. No errors of law, prejudicial to defendant, occurred at the trial, and the findings of fact support the conclusions of law. Hence, the only question is whether the case Avas one where the court was justified in granting a new trial on the ground that the findings of fact were not sustained by the evidence. There is some slight eAddence, of a very vague and unsatisfactory character, that at the time plaintiff gave his written consent to the assignment of the lease to Barge, in answer to defendant’s inquiry Avhether “this released him from all obligations,” or if “he was released from everything,” plaintiff replied in the affirmative. But it is wholly unnecessary to consider this class of evidence, for the reason that a leasehold interest in land for more than one year can no more be surrendered than it can be created by parol. 1878 G. S. ch. 41, § 10.

There is therefore absolutely no evidence of a surrender of the lease by any contract of the parties. There is also an entire absence of any evidence sufficient to establish a surrender by operation of law.

As was said in Stern v. Thayer, 56 Minn. 93, (57 N. W. 329,) a surrender by operation of law can only be built up by invoking and relying on the doctrine of estoppel, — upon a condition of facts, voluntarily assumed, incompatible with the existence of the relation of landlord and tenant between parties who have occupied that position.

Nothing is better settled than that a surrender of the lease, or a release of the lessee, is not to be implied from the mere facts that the lessor assented to the assignment of the lease, and accepted rent from the assignee in possession; and this is the very most which the evidence, admitted or offered, tended to prove that plaintiff had done; at least, until after the June rent was due, and fully earned. What was done after that cannot affect plaintiff’s right to recover the rent for that month; but we may add that plaintiff’s taking possession in July, and renting, or attempting to rent, the premises to another tenant after default in the covenants of the lease, and after Barge had vacated them, were things which, under the terms of the lease, plaintiff had a right to do, without working a forfeiture of the rents for the full term of the lease.

Counsel for respondent relies on some things said in Bowen v. Haskell, 53 Minn. 480, (55 N. W. 629,) which, if wrested from their context, might seem to imply that the mere consent of the lessor to an assignment of the lease releases the lessee, and terminates the relation of landlord and tenant between them. The most cursory examination of that case will show that nothing of the kind was decided, or intended to be decided. In that ease there was an express finding, the correctness of which was not questioned, that plaintiffs accepted Chambers (the second assignee of the lease) as their tenant under the lease, in place of Haskell (the first assignee). Moreover, Haskell being himself merely an assignee of the lease, his liability was founded merely on privity of estate, and not, like that of the lessee, on privity of contract also, and hence terminated with his assignment to another.

The evidence was such that it would not have supported any other finding than that which the court made. Consequently, the order cannot be sustained, even under the rule of Hicks v. Stone, 13 Minn. 434 (Gil. 398).

The order granting a new trial is reversed, and the cause remanded, with directions to the court below to render judgment in favor of the plaintiff, in accordance with the findings of fact and conclusions of law.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 310.)