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1907 OK 80
92 P. 153
19 Okla. 45
Decided: 09/04/1907
Supreme Court of Oklahoma


M. Fulton and J. S. Jenkins, for plaintiff in error.
Shartel, Keaton & Wells, for defendant in error.


¶1 The question of law involved is whether the action of Higgins, after the property was vacated by his subtenant, amounted to an abandonment of the lease, and the action of Street, in repairing and reletting the property to another tenant, constituted either an eviction or an acceptance of the surrender of the lease. Higgins makes both contentions: First, that the lease was surrendered at the time Street consented to the subletting to Mrs. Tedford; and, second, if the lease was not surrendered, that the action of Street in taking possession and subletting the property constitutes an eviction-in either of which cases he would not be liable for rents after the happening of such event. These questions both depend upon the particular facts in the case. Where a tenant abandons the premises, the landlord may at his election consent to the surrender, enter and terminate the contract, and recover the rent due up to the time of the abandonment; or he may suffer the premises to remain vacant, refuse to consent to a surrender, and sue on the contract at the end of the term for the entire rent; or he may give notice to the tenant of his intention to hold him for the rent, and sublet the premises for the benefit of the lessee for the unexpired term, and give him credit for the rent received to reduce his damages. It is this last rule that Street attempts to invoke in this case. While Higgins seems to have stood upon the assumption that by leasing the hotel to Mrs. Tedford, and having Street consent to such subletting, he was released from further liability, there was a surrender of the lease. In our judgment the uncontroverted testimony shows that there was neither a surrender or an eviction. Street made no agreement to release the lessee at the time Mrs. Tedford went into the building. The lessees assigned their contract to her, but Street refused to accept her as his tenant and refused to release the lessees from the payment of the rent. He took what rent she paid, receipted to her in the name of Higgins, and gave Higgins credit for the amounts paid by her. He told her, and she communicated the statement to Fulton, that he was looking to Higgins for the rent, and for that reason made out the receipts to Higgins and delivered them to her. In order to constitute a surrender there must be shown a mutual agreement between the lessor and lessee. A lease in writing constitutes a written contract, and the lessee cannot surrender it or be released from its terms without the consent of the lessor, and it is absolutely essential to the termination of the term that both the lessor and the lessee agreed to the surrender; and, when this is shown, the tenant is no longer liable. Stewart v. Sprague, 71 Mich. 50, 38 N.W. 673; Bourdereaux v. Walker, 78 Ill. App. 63; Milling v. Becker, 96 Pa. 182; Lane v. Nelson, 167 Pa. 602, 31 Atl. 864; Scheelky v. Koch, 119 N. C. 80, 25 S.E. 713; Livermore v. Eddy, 33 Mo. 547; Stewart v. Sprague, 71 Mich. 50, 38 N.W. 673; Detroit Pharmacal Co. v. Burt, 124 Mich. 220, 82 N.W. 893; Jones on Landlord & Tenant, § 539.

¶2 Was there an eviction? A number of the authorities hold that if the tenant leaves the premises vacant or unoccupied, and the landlord enters without his consent and relets the premises, such action constitutes an eviction of the tenant and terminates the lease; and, in the absence of any other circumstances, such is the law. But there is another rule as well established and of as extensive application. In Jones on Landlord and Tenant, a recent work by an able author, the rule is stated as follows: section 549: "After an unauthorized abandonment by a tenant, the landlord may, by taking proper precautions, relet to another without creating a surrender by operation of law; but he is not bound to do so. In a recent case it was said: 'The rule sanctioned by the decided weight of authority, if, indeed, there can be said to be a diversity of opinion on the subject, is that the landlord may, in such case, at his election, relet the premises upon the abandonment thereof by the tenant, in which case the measure of his damages will be the agreed rental less the amount realized on account of such reletting, or he may permit the premises to remain vacant until the end of the term and recover his rent in accordance with the terms of the lease.' Although the landlord may relet for the benefit of the lessee and on his account without releasing him from his undertakings, such acts, if unexplained, would amount to a surrender by operation of law, as in a case where the lessor accepted the surrender." In Brown v. Cairns, 63 Kan. 584, 66 Pac. 639, this identical question was involved under a lease which provided that if the lessees, at any time during the term, should fail to perform either of the promises or covenants, the lease should terminate and be at an end, and the court held that such covenants were for the benefit of the lessor only, and that the lessee could not, by failure to perform the conditions of his lease, abrogate the contract and thus secure the advantage of his own default, and that the landlord had a right to take possession and lease to another tenant for the purpose of reducing the liability of the original tenants, and such action would not create a surrender by operation of law. In Brown v. Cairns, 107 Iowa, 727, 77 N.W. 478, the question is very fully discussed and the authorities cited supporting the rule stated in Jones, supra. To the same effect are: Nerrill v. Willis, 51 Neb. 162, 70 N.W. 914; Bowen v. Clarke, 22 Or. 566, 30 Pac. 430, 29 Am. S. Rep. 625; Scott v. Beecher et al., 91 Mich. 590, 52 N.W. 20; Underhill v. Collins, 132 N.Y. 269, 30 N.E. 576; Biggs v. Stueler, 93 Md. 100, 48 Atl. 727; Stewart v. Sprague, 71 Mich 50, 38 N.W. 673; Humiston, Keeling & Co. v. Wheeler, 70 Ill. App. 349; Respini v. Porta, 89 Cal. 464, 26 Pac. 967, 23 Am. St. Rep. 488; Meyer & Co. v. Smith, 33 Ark. 627; Ledoux v. Jones et al., 20 La. Ann. 539; Scheelky v. Koch, 119 N. C. 80, 25 S.E. 713; Gerhart Co. v. Brecht, 109 Mo. App. 25, 84 S.W. 216; Auer v. Penn, 99 Pa. 370, 44 Am. Rep. 114; Alsup v. Banks, 68 Miss. 664, 9 South. 895, 13 L. R. A. 598, 24 Am. St. Rep. 294; Stewart v. Sprague, 71 Mich. 50, 38 N.W. 673; Stewart v. Sprague, 76 Mich. 184, 42 N.W. 1088. We think the facts in this case come within the rule last stated. Higgins had gone to California and left his sublessee in possession of the hotel. During his absence she vacated the building. It required attention. The insurance was about to be invalidated. Street made it known to the attorney and agent of Higgins that the property must be occupied; that he would continue to hold Higgins for the rent. The property remained unoccupied for over a month. Street had a watchman to stay about the property of nights to protect it. Higgins had for all practical purposes abandoned the lease. He was paying no rent, and Street then made some necessary repairs, advertised the property for rent, and finally through a rental agent procured a tenant for the unexpired portion of the term and gave Higgins credit on account for the rent received. Higgins came home before the tenancy expired, made no claim for the property, and made no objections to the subleasing by Street. It cannot be said that Street evidenced any purpose to evict the lessees or to release them from their obligations. Upon the other hand, the circumstances all show that he was studiously trying to avoid releasing them, was trying to preserve the property and lighten their damages as much as possible.

¶3 The plaintiff in error submitted certain special questions to the jury to be answered under oath, upon which they specifically found that Fulton was the agent of Higgins during the absence of Higgins, and charged with the control of the property, and that Street notified Fulton of his intention to re-enter the property and lease it on account of Higgins on the original lease. We think the evidence supports the verdict of the jury, and that there is nothing in the special findings in conflict with the verdict.

¶4 The plaintiff in error objects to some of the instructions given by the court. The instructions were in writing, and consist of several separate specific propositions, covering the entire law of the case. The only exceptions taken are as follows: "Defendant excepted to the instructions given the jury by the court." This was not a sufficient objection. Glaser v. Glaser,

¶5 The defendant presented four separate requests for instructions to the jury, each of which was refused, and this refusal is alleged as error. The first request is in direct conflict with the rule of law we have stated herein, and it was properly refused. Request No. 2 is also in conflict with the rule that a landlord may, under any conditions, re-enter and lease the premises for the benefit of the lessor. Request No. 3 is embraced in and entirely covered by the general instructions given by the court. Request No. 4 is also in conflict with the principle we have adopted in this opinion. There was no prejudicial error in refusing these requests.

¶6 The only other contention of plaintiff in error is that the court erred in permitting the plaintiff, Street, to testify as to what his purpose or intention was in taking possession and reletting the property. We think this was competent testimony. His purpose or intention was a material question in relation to his action in taking possession of the vacant property before the expiration of the lease, and, where it is proper to inquire into or determine the intent of a person, it is proper to permit such person to testify as to his intent.

¶7 We find no error in the record. The case appears to have been tried fairly and impartially, the evidence is sufficient to support the verdict, the instructions fairly and fully state the law, and the judgment should be affirmed.

¶8 The judgment of the probate court of Oklahoma county is affirmed, at the costs of the plaintiff in error. All the Justices concur, except IRWIN, J., absent.