Locascio v. Barber , 17 Ala. App. 595 ( 1920 )

The defendant occupied the premises under the contract of rental until some time in February, and then, without notice to his landlord or fault on the part of the landlord, moved out and abandoned the property, leaving it vacant and uncared for, and was not seen by the landlord for more than a year. Upon being informed of the condition of the property, and that it was left open, and all of the effects of defendant gone, and that the defendant had left no keys, the landlord fastened up the house and left it vacant until May 1st, when he rented it to another tenant at a reduced rent for the balance of the term and put the new tenant in possession. This he did without consulting defendant or seeing him. The contract was for one year, but called for monthly payments of $20 each, in advance, and all of these were paid to February 1st.

It is true the plaintiff testified that when he found that the defendant had abandoned the premises he "took possession," but this was a conclusion. The facts testified to, as to what he did, were to close up the house in such manner as to preserve it and advertise it for rent. Where property has been abandoned by a tenant, the landlord may enter upon the premises for the purpose of caring for them and preventing trespass or other depreciation, without affecting the tenant's liability for future rent. 16 Rawle C. L. p. 970, § 482, note 8. This in no wise interferes with the tenant's right to use. Where, however, the landlord takes such action as that it amounts to an eviction, the contract of rental is determined and the liability for rent ceases. Schuisler Donnell v. Ames, 16 Ala. 73, 50 Am. Dec. 168; Roll v. Howell, 9 Ala. App. 171, 62 So. 463. Under the facts in this case, the eviction took place on May 1st, after which time plaintiff was not entitled to recover rent from defendant, although the rent was for a lesser amount than the contract called for.

Under the undisputed facts, the plaintiff is entitled to a judgment for the rent due February 1st, March 1st, and April 1, 1915, at $20 per month, with interest thereon, plus a reasonable attorney's fee, which is proven to be $25. This would amount to $115.40 at the date of trial. The judgment rendered in the lower court is only $85, of which the plaintiff does not complain, and as to the defendant it is error without injury.

There is no reversible error in the record, and the judgment is affirmed.

Affirmed.

On Rehearing. It is urged by counsel for appellant that this court has not given consideration to that clause in the written lease whereby it is provided:

"Should the lessee fail to pay the rents as they become due as aforesaid, or violate any other condition of this lease, the lessor shall then have the right at his option to re-enter the premises and annul this lease."

It was not necessary for the court to pass upon that clause in the contract under the facts as presented, there being no evidence to show that the lessor exercised the option under the lease to annul the same. Whether the lessor entered after abandonment by the lessee, independent of the lease, or whether he entered, by reason of the exercise of the option in the lease is of no moment. That the actual entry took place on May 1st fixes the liabilities and rights of the parties in this suit, and this fact is established by the evidence, to the satisfaction of this court.

Application overruled.