Logan v. Anderson

2 Doug. 101

Opinion

Whipple, J.

delivered the opinion of the Court.

To warrant the judgment of the circuit court, it must be assumed that the agreement referred to by Gorham was void, under the provisions of R. L. 1833, p. 342, § 9,

* which declares “ that no leases, &c. shall, at any time hereafter, be assigned, granted, or surrendered, unless it be by deed or pote in writing, signed by the parties so assigning, granting, or surrendering the same, or their agents, thereunto lawfully authorized by writing, or by act and operation of law.” The only question presented for our consideration, is, whether the le.ase executed by Anderson was surrendered “ by act and operation of law.” As the facts were withdrawn from the consideration of the jury, if it clearly appears to the court that Anderson accepted Gorham as his tenant, with' the assent of Logan, or that Gorham took a new lease from Anderson, with the assent of Logan, who agreed to the substitution, then it is clear, such acceptance of a. new lease, though by parol, would operate as a surrender of the former lease by deed.

This construction of the statute of frauds, is fully warranted both by elementary writers, and by adjudged cases of the highest authority. In the case of Thomas v. Cooke, 2 Stark. R. 407, (S. C. 3 E. C. L. R. 405,) the facts were, that Thomas let the premises to Cooke, and the latter underlet to one Perks. The rent being in arrear, Thomas distrained upon Perks, who gave a bill of exchange for the amount. Thomas then said that he would have nothing more to do with Cooke, and took the bill of exchange in discharge of the rent. After this, Thomas jguin_ distrained upon Perks, and then brought an action against Cooke for the rent. The question was, whether Cooke still remained liable as the tenant of Thomas. On the part of the plaintiff it was insisted that the tenancy of Cooke still subsisted, but Abbott, J. left it to the jury to say, whether the plaintiff, after the distress, had not accepted Perks as his tenant, with the assent of Cooke. The jury finding in the affirmative, the plaintiff was nonsuited, with leave to move the court to set aside the nonsuit, and enter a verdict for the plaintiff. In the ensuing term, Topping, for plaintiff, moved accordingly; “but the court were of opinion that the circumstances constituted a surrender by operation of law. If a lessee assign, and the lessor accept the assignee of the lessee as his tenant, that, in point of law, puts an end to the privity of estate between the lessor and the lessee.” In the same case, the court further remarked that, “alandlord could not have two tenants at the same time; and here the plaintiff had made his election to take Perks as his tenant.” In the case of Stone v. Whiting, 2 Stark. 235, (3 E. C. L. R. 331,) the facts were, that Whiting, who was then tenant of certain premises, let them to a person of the name of Lockwood, and they afterwards went to Stone to inform him of what they had done, when he agreed to take Lockwood as his tenant from that time, and to discharge Whiting from further liability as tenant. Holroyd, J. on the trial of the cause, said, that there was an agreement that one should be substituted for the other as tenant, and he was inclined to think, that this constituted a surrender in law. That the taking a new lease by parol is, by operation of law, a surrender of the old one, is not only fully established by the cases cited, but is also recognized by the King’s Bench in the case of Thomas v. Cooke, 2 B. & Ald. 119. See, also, 2 Stark. Ev. 343; 1 Saun. R. 236; Harding v. Crethorn, 1 Esp. R. 57.

Applying the principle thus laid down, to the facts as they appeared beftne the circuit court, we think it clear, that that court erred in rendering a judgment for the plaintiff upon the verdict of the jury. Had the facts been submitted to the jury, as in the case of Thomas v. Cooke, there can be no doubt that they would have found that Anderson accepted Gorham as his tenant, with the assent of Logan ; and as this assent would have the same legal effect as if Logan had actually surrendered the former lease, it is equally clear that their verdict, under proper instructions from the court, must have been for the defendant.

The judgment of the circuit court must be reversed with costs»

Judgment reversed.

Vide R. S. 1846, oh. 80, J B, and R. S. 1838, p. 329, § 6,