Rice v. Dudley

65 Ala. 68

• Court: Supreme Court of Alabama
• Decided: November 15, 1880
• Status: Published

Opinion

SOMEBYILLE, J.

— Where a tenant abandons the premises leased, before the expiration of the term, the landlord is at liberty to pursue either of two courses. He may suffer the premises to remain vacant, and sue on the contract of renting; or he may enter, and determine the contract, claiming the rent due up to the date of abandonment. — Crommelin v. Thiess & Co., 31 Ala. 412; Schuesler & Donnell v. Ames, 16 Ala. 73. The landlord can not take possession of thel premises, and insist, at the same time, that the contract of renting is in force, without the consent, express or implied, of the tenant. It is always to be implied, in the absence of a stipulation to the contrary, that the tenant shall have the uninterrupted occupancy and use of the whole of the premises ; and if he be ousted from any material part thereof, he may treat such interference of the landlord as an eviction, and abandon the lease. And in the event of the tenant’s electing to take this course, he is exonerated from the payment of rent. — Tailor on Land. & Ten. § 315 ; Christopher v. Austin, 11 N. Y. 216.

In the case of Upton v Townsend, 84 Eng. C. L. 30, it was said by Jervis, Lord Chief-Justice : “ It is extremely difficult, at the present day, to define with technical accuracy what is an eviction. ... I think it may now be taken to mean this — not a mere trespass and nothing more, but something of a grave and permanent character, done by the landlord with the intention of depriving the tenant of the enjoymentof the demised premises.” This, we think, is a proper exposition of the law ; the question of eviction or no eviction depending upon the facts, and being a matter for the decision of the jury. — Hayner v. Smith, 63 Ill. 430.

The charges numbered 1 and 2, and requested by the appellant to be given by the circuit judge, do not harmonize with these principles, and were properly refused..

Whether, under a count properly framed for use and occu-i pation, a recovery could, in any event, have been sustained,' on a quantum meruit, for the occupancy of a portion of the demised premises, it is not necessary to consider, the authorities on this point being conflicting. — Christopher v. Austin, supra; Leishman v. White, 1 Alen (Mass.), 489.

Affirmed.