Elliott v. Aiken

Bellows, J.

The demise is of the room and its appurtenances for three years, and the brief statement alleges, that, before the execution of the lease, a steam engine had been placed in the building, which, by means of belts and bands, supplied the motive power for the machinery used and occupied by the defendant; and it then alleges, that, after the execution of the lease, the plaintiff agreed with the defendant that no power should be taken from the steam engine to the disadvantage of the defendant ; that the plaintiff had permitted it to be done, so that prior to Oct. 14, 1860, the occupatión of the room became ofno value to the defendant.

Assuming the motive power for defendant’s machinery to have been included in the lease, still the ground of defence stated is not the withholding of that, but rather the breach of the subsequent agreement, for which another remedy is to be sought; and therefore in respect to this ground of defence the brief statement is defective.

So it is not a good defence that the plaintiff entered the room and cut through the floors and ceiling for the purpose of conducting belts to other machinery, even although it might occasion some injury to the defendant, unless it was of such a character as justly to cause the lessee to give up the possession of the premises; for it would be entirely unjust to permit the tenant to have a beneficial use of the property without making any compensation; as was held in Edgerton v. Page, 20 N. Y. Rep. 281 , where the defence set up was, that the water pipes from the upper stories of the building, in which the room leased was situate, were suffered by the lessee to become leaky, by means of which large quantities of water and filth were discharged into defendant’s room. Taylor’s Land. & Ten. sec. 388.

It seems to be well settled, indeed, that a mere trespass by a lessor, without an eviction, does not cause a suspension of the rent. Hunt v. Cape, Cowp. 242. See also Allen v. Pell, 4 Wend. 505 . This part of the brief statement is therefore defective, because it does not state an eviction, or its equivalent.

The third ground of defence is, that the building had become unsafe *36 and not tenantable, and that defendant had surrendered the possession to the plaintiff, who had accepted it.

Upon examining the lease there is found no stipulation on the part of the lessor to make repairs, or that the demised premises should remain tenantable, and we think none is implied from the relation. Taylor’s Land. & Ten. sec. 327 to 331; Gott v. Gandy, 2 El. & Black. 845; Hart v. Windsor, 12 M. & W. 68; Foster v. Peyser, 9 Cush. 242 ; Cleaves v. Willoughby, 7 Hill 83 ; 4 Kent’s Com. 465, 468, and cases. But we think that the surrender of the possession to the lessor, and the acceptance by him for the reason that the premises were not tenantable, would be a good answer to any claim for rent after- such surrender.

It is immaterial, indeed, for what reason the premises were given up, provided the lessor accepted the possession and re-entered. It'would stand in fact upon the same ground as an eviction by the lessor, in which case the tenant is excused from paying rent. Russell v. Fabyan, 27 N. H. 529.

Nor is it an objection that there was no written release or surrender of the tenant’s interest. A mere parol agreement to surrender his term without an actual delivery of the possession to the landlord, would, it is true, avail nothing; because such surrender, by the express provisions of our statute, must be in writing. Comp. St. ch. 136, sec. 12. But an actual and continued change of possession, by the mutual consent of the parties, will amount to a surrender by operation of law. Taylor’s Land. & Ten. sec. 515, and cases cited; as, where the lessee of a ferry, finding that he could not pay the rent, proposed to the landlord to manage it as his servant, and was accepted and received wages as such — it was held that this was a surrender by operation of law. Peter v. Kendall & al. 6 B. & C. 703. See also Hall v. Burgess, 5 B. & C. 333, and Whitehead v. Clifford, 5 Taunt. 518, where the landlord in the middle of a term accepted of the tenant the key of the house demised, on a parol agreement that the rent should cease, and the tenant never afterwards occupied the premises — it was decided that an action for use and occupation would not lie for rent subsequent to the accepting of the key. A similar doctrine is held in Randall v. Rich, 11 Mass. 494 .

The amended brief statement sets out all of the grounds of' defence that are available to the defendant, and it therefore is unnecessary to consider the sufficiency of the one originally filed.

The only question remaining is, as to the competency of the evidence in respect to the surrender of the key by the defendant; and we think it might properly be weighed by the jury in connection with other evidence of the yielding up of the possession to the plaintiff.

The question is not whether it was sufficient of itself, but whether it was admissible; and we think it clearly was so. Whitehead v. Clifford, 5 Taunt. 18; 2 Saund. Pl. & Ev. 894.

The plaintiff’s counsel is undoubtedly right in the position that the motion for a continuance is addressed to the discretion of the presiding judge, but in this case the competency of the evidence was expressly reserved for this court.

With these views the case is to be discharged for further proceedings.