| Ark. | May 9, 1896
(after stating the facts). We need not discuss the instructions given by the learned judge to the jury in this case. In our opinion, he was justified in holding, as a matter of law, that'the letter of W. A. Crossett & Co. to Williamson was an offer to surrender the place for the year 1893. The appellees, by that letter, stated to Williamson, in substance, that they were unable to furnish hands and teams to work the place which they had rented from him for that year, and advised him that, as it was early in the season, he could, rent it out to some one else, and lose nothing. This could mean nothing else than an offer to surrender the premises to him. Williamson did not reply to this letter, but soon afterwards took charge of the place, and controlled it for the remainder of the year, without any notice to appellees that he was managing the place on their account, or that he expected them to make good any deficiency in the rents. This conduct on his part amounted to an acceptance of the offer to surrender made by Crossett & Co.
The evidence conclusively shows that this was the understanding of the parties at the time Williamson took possession. He himself says that, at the time he received this letter from Crossett & Co., he supposed that they were “totally insolvent.” Upon arriving at the place, he stated to Counts, a tenant who had rented a portion of the place, that Crossett & Co. “had failed, and turned him back the place.” He thus induced Counts to take up the note he had executed to Crossett & Co., and to execute a new note direct to him for the rent of a portion of the land. This proves that he was not managing the place for the account of Crossett & Co., and that he considered that they had no further rights in the premises. When the tenant offers to surrender his lease, and the offer is accepted by the landlord, the tenant is not liable for rents accruing afterwards. The facts of this case show that Williamson had no right of action against Crossett & Co. for rents accruing after he took possession. Talbot v. Whipple, 14 Allen, 180; 2 Wood, Landlord & Tenant (4 Ed.), sec. 494.
We have not overlooked the case of Meyer v. Smith, 33 Ark. 627" date_filed="1878-11-15" court="Ark." case_name="J. C. Meyer & Co. v. Smith">33 Ark. 627, cited by counsel for appellant. It was held in that case that when the tenant abandons the premises, refuses to pay rent, and repudiates the tenancy before the expiration of the lease, the landlord may take possession, and rent for the benefit of whom it may concern, and hold the tenant liable for any portion of the rent unpaid at the end of the term. There was no offer to surrender made in that case by the tenant, and nothing to show th^t the landlord had accepted a surrender of the lease by the tenant, as there is in this case. It was said in that case that the tenants “refused to respond to all letters concerning the rents, withdrew from the occupancy, and left the house open and unprotected;” that “they never acknowledged any liability for rent after a short occupation to serve their business purpose, but acted in such a manner as to indicate beyond doubt their fixed purpose to repudiate the tenancy.” It was held that the landlord, by taking possession under those circumstances, did' not, as a matter of law, accept the surrender of the tenant’s lease. There are cases in other states opposed to the rule announced in Meyer v. Smith. As supporting it see State v. McClay, 1 Har. (Del.) 520; Breuckmann v. Twibill, 89 Pa. St. 58. Opposed to it, see Schuisler v. Ames, 16 Ala. 73" date_filed="1849-01-15" court="Ala." case_name="Schuisler & Donnell v. Ames">16 Ala. 73; Rice v. Dudley, 65 Ala. 68" date_filed="1880-11-15" court="Ala." case_name="Rice v. Dudley">65 Ala. 68; Hachett v. Richards, 13 N. Y. 140.
But the facts here are different. There is no repudiation of the tenancy here. On the contrary, there is an express acknowledgment of the tenancy in the letter of Crossett to Williamson, and an offer to surrender. “I write to inform you,” he says, “that it will be impossible for us to furnish hands and teams to work your place which we have a lease on for this year.” He admits the contract and the liability, but states that, by reason of business reverses, they will be unable to comply with the contract, and, in effect, offers to surrender the place to appellants. By taking charge of the place soon after receiving this letter, and controlling it for the remainder of the year, without further notice to Crossett & Co., appellants accepted the offer to surrender. Their holding was not for Crossett & Co., but for themselves, and the rights and liabilities of Crossett & Co. as to rents thereafter accruing were at an end. Hall v. Burgess, 5 B. & C. 332.
The judgment of the circuit court is therefore affirmed.