Schuisler & Donnell v. Ames
16 Ala. 73
Ala.
1849
Check Treatment
DARGAN, J.

When this cause was before this court at *76a previous terip, we held, that .where there was a lease at a stipulated annual rent, and the tenant held over without making any new agreement as to the rent, the law implied a contract of renting from year to year, at the original rent agreed on. 14 Ala. 600. It is now shown that the defendants abandoned the premises in January 1845, and in August the plaintiff entered into a new contract, by which he leased the store to one of them alone, and it is contended, that this renting discharged the other tenant from the rent that had fallen due, and which remained unpaid at the time of the lease to Donnell.

It is not necessary to determine whether the defendants would be discharged from the rent that had fallen due, if the landlord, before the term expired, had entered upon the premises and actually expelled them: but we think it very clear, that if the tenants abandon the premises altogether, the landlord is not bound to let them remain vacant, during the entire term; in order to retain the right to recover the rent then actually due. But he may enter, and from that time the contract is determined, but his right to recover the rent due at the time of his taking possession, is not thereby lost. In the case of Marseilles v. Kerr, 6 Whart. 500, the plaintiff had leased a store to the defendant, who took possession, and then abandoned the premises. The plaintiff gave him notice that he should re-rent the store, but would hold him liable for the time it remained unoccupied. The plaintiff afterwards leased the store to another and sued the defendant for a quarter’s rent. The court held that the defendant was liable for this quarter’s rent. See also 7 Watts, 123. This decision seems to be in accordance with justice. If the tenant abandons the premises, the landlord ought not to be bound to suffer them to remain vacant during the term. Indeed it might often be more injurious to him to let them lie idle and unoccupied, than it would be to lose the rent, and he maybe compelled to enter to avoid this greater loss, An entry under such circumstances should not discharge the tenant from the rent, that had accrued and was due. The entry, however, puts an end to the contract from that time, but does not release the tenant from the rent then due and unpaid. To hold otherwise, would be to enable the tenant, by abandoning the premises, to compel the landlord in many instances to release the rent due, by making *77an entry, or to submit perhaps to greater loss. The correct rule, we think, is that if the tenant abandons the premises, the landlord may let them lie idle and recover rent for the whole term, or he may put an end to the contract of lease by entry; if he does so, he can only recover the rent actually due at the ■time he takes possession. The ruling of the Circuit Court was in accordance with the law as here expressed.

Let the judgment be affirmed.