Felder v. Richardson

32 A. 830, 67 N.H. 509

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1893
• Status: Published

Opinion

Carpenter, J.

The principal question is, whether Warren’s estate in the demised premises was surrendered to the plaintiffs by operation of law. P. S., e. 137, s. 12. Precisely what is meant by a surrender by operation of law, and in what state of facts the law operates to effect a surrender, may not be fully settled, and for the disposition of the present question need not be determined. A surrender by agreement, whether express or implied, is the act not of the law but of the parties. To constitute a surrender by operation of law, overt acts of both parties inconsistent with the continuance of the term are essential. Co. Lit. 338 a ; Com. Dig., Surrender II; 20 Vin. Abr., Surrender F; Bro. Leg. Max. 669, 670 ; Rob. Fr. 248-261; Mollett v. Brayne, 2 Camp. 103; Thomas v. Cook, 2 B. & Ald. 119; Huddlestone v. Johnstone, M’Cl. & Y. 141; Johnstone v. Huddlestone, 4 B. & C. 922; Graham v. Wichelo, 1 C. & M. 188; Walker v. Richardson, 2 M. & W. 882; Dodd v. Acklom, 6 M. & G. 672; Lyon v. Reed, 13 M. & W. 285, 305-310; Nickells v. Atherstone, 10 Q. B. 944; M'Donnell v. Pope, 9 Hare 705; Davison v. Gent, 1 H. & N. 744; Phené v. Popplewell, 12 C. B. N. S. 334; Oastler v. Henderson, 2 Q. B. Div. 575; 2 Sm. Lea. Ca. (4th Am. ed.) *459 a-*460; Elliott v. Aiken, 45 N. H. 30, 36; Kendall v. Hill, 64 N. H. 553; Beall v. White, 94 U. S. 382; Randall v. Rich, 11 Mass. 494; Brewer v. Dyer, 7 Cush. 337; Talbot v. Whipple, 14 Allen 177, 180, 181; Amory v. Kannoffsky, 117 Mass. 351; Hesseltine v. Seavey, 16 Me. 212; Schieffelin v. Carpenter, 15 Wend. 400; Bedford v. Terhune, 30 N. Y. 453; Coe v. Hobby, 72 N. Y. 141; Smith v. Kerr, 108 N. Y. 31; Bacon v. Brown, 9 Conn. 334; Strong v. Crosby, 21 Conn. 398, 404, 405; Patchin v. Dickerman, 31 Vt. 666; Bro. St. Fr., ss. 48-57.

The plaintiffs verbally assented to Warren’s sale of his interest to Richardson, and to his abandonment of the premises, and agreed verbally with Richardson, to look to him alone for the performance of the covenants. But they did nothing inconsistent with the continuance of the term in Warren. They did not resume possession and executed no new lease. They were bound by the terms of the lease to receive the rent of Richardson, and he was bound to pay it. The special issue submitted to the jury was immaterial. In the view most favorable to Warren, the case stands as if, he being the sole tenant, the plaintiffs orally consented to his leaving and agreed to release him from his covenants, and he accordingly abandoned the premises. To hold this to be a surrender by operation of law would nullify the statute.

The plaintiffs’ lien, if they had one, on the buildings, tools, and machinery was a collateral security for the payment of the rent, and the, ruling in regard to it was correct.

Judgment on the verdict.

Smith J., did not sit: the others concurred.