Witman v. Watry

31 Wis. 638

Opinion

LyoN, J.

So far as we are able to discover from the record before us, it seems that the main question in controversy is, whether the defendant acccepted a surrender of the lease or not. Any testimony offered by the plaintiff which, if received. might tend to prove such surrender, ought to have been admitted. As to what acts will constitute a valid surrender of a lease under seal, the rule extracted from the authorities is stated by Prof. Washburn as follows: “ So where, before the expiration of a lease under seal, the lessee actually surrendered possession of the premises to his lessor, who accepted the same and leased them to another, it was held to be, in effect, a surrender.” 1 Washb. on Real Property, ch. 10, § 7, par. 6. The cases cited by the learned author seem fully to establish the doctrine of the text, and we accept it as the true rule of law on the subject.

In the present case the answer admits that the defendant leased the premises to another ; and the testimony ruled out by the court might have proved (had it been admitted) an actual surrender of tbe possession of tbe premises by the lessee to tbe defendant, and an acceptance thereof by the latter.

In the light of the foregoing rule, it is clear that the testimony should have been received. The rejection thereof by the court is fatal to the judgment.

Not having the benefit of a brief or argument on behalf of the defendant in error, we do not feel called upon to discuss the question involved in the case to any considerable extent, but content ourselves by merely- announcing the principle of law which7 controls our decision.

By the Court.— The j udgment of the circuit court is reversed, and a venire de novo awarded.