Oldewurtel v. Wiesenfeld , 97 Md. 165 ( 1903 )

On the eighth day of June, 1900, the appellees instituted a suit in covenant in the Superior Court of Baltimore City, against the appellant, to recover rent due and owing under a lease dated the 1st day of April, 1895, for a store and dwelling known as No. 507 South Broadway, Baltimore. The lease is in writing and is fully set out in the record. The property was rented for the term of five years, beginning on the first day of April, 1895, and ending on the 31st day of March, 1900, at $900 a year, payable in equal monthly instalments on the first day of each and every month. It was provided by the terms of the lease that its provisions and covenants should continue in force from term to term after the expiration of the term mentioned therein, provided the parties thereto or either of them could terminate it at the end of the term, or of any year thereafter, by giving at least ninety days previous notice thereof in writing. It was further provided, in case the rent should be ten days in arrear and not paid when the same should become due, then the lessor may re-enter and take back the premises without demand. There was no covenant in the lease for making repairs to the premises.

The declaration states that the sum of six hundred and five dollars was due and unpaid for rent with interest from April 1st, 1900, over and above all discounts, according to the following bill of particulars, which was filed, on demand, in the case.

BILL OF PARTICULARS.
  Mr. Henry Oldewurtel to Bernard Wiesenfeld and Joseph Miller, trustees
of the estate of Betsey Wiesenfeld.
To 5 years rent of No. 507 S. Broadway, at $900 per year, as per
lease of April 1st, 1895 .......................................  $4,500 00
Less $10 per month, waived for the months of Aug., Sept., October,
November and Dec., 1897, and Jan'y, 1898, respectively .........      60 00
_________
$4,440 00
                                CREDITS.
By cash from April 1st, 1895, to June 1st, 1898 .................  $2,865 00
"Hughes  Co., from Sept. 1st, 1898, to Jany. 1st, 1899 ........     280 00
"Wheeler  Hughes, from Feb. 1st, 1899, to Aug. 1st, 1899 ......     370 00
"C. Walmacher, from Oct. 19th, 1899, to Mar. 31st, 1900 ........     320 00
_________
$3,835 00
To balance ................................................     605 00

The declaration was in covenant, and the lease, which was in writing under seal, was filed with the declaration. To the declaration as thus filed, the defendant interposed a demurrer upon the ground that the lease sued on had been varied by a subsequent parol agreement and the suit should have been inassumpsit and not in covenant. The action of the Court on overruling the demurrer presents the first question for our consideration. We find no error in the Court's ruling upon the demurrer. There was no such subsequent parol agreement between the parties in this case, as varied the original lease, and prevented a suit in covenant thereon. The mere credit or reduction of the rent for six months to the extent of $10 a month, when the defendant, at the end of the six months paid the rental reserved in the lease, and continued in possession according to the terms of the lease, without a new agreement, can hardly be held to be such a waiver, alteration or abandonment of the lease as to defeat the action in this case. Herzog v.Sawyer, 61 Md. 344; Bodey v. Cooper, 82 Md. 631; Zihlman v. Cumberland Glass Co., 74 Md. 310.

The case of O'Brien v. Fowler, et al., 67 Md. 565, relied upon by the appellant is unlike this. In that case the plaintiff brought an action of covenant against the defendant, and in the fifth count of the declaration sought to recover for extra work and materials furnished which were not embraced in the written contract. The contract stipulated that no extra work would be allowed, unless the same should be performed through a written order, signed by the engineer and approved by the examiners. The written orders as required by the contract were waived by the defendant for the extra work and the Court held upon demurrer that while the plaintiff could not recover for the extra work on the original contract under seal, he might recover in an action of assumpsit for the value of the extra work. In the case here, the plaintiff seeks to recover for rent due under the contract, less a gratuitous abatement in rent of ten dollars for six months, before a breach of the contract, under seal, and other credits, as given. The other questions raised on the record, arise upon exceptions to the rulings of the Court upon the prayers, and to the admissibility of evidence.

The undisputed facts of the case out of which the controversy arose briefly stated are these: The defendant, the lessee, continued in possession of the demised premises until June 1st, 1898, when he paid the rent to that date and left the key at the office of the plaintiff in his absence, stating to the clerk "that he had moved out the house and here was the key."

On June 2nd, the next day, the plaintiff wrote him the following letter:

"Henry Oldewurtel, Esq.,

Dear Sir: — I have been informed that you left the key of No. 507 South Broadway at my office. I beg to notify you that I refuse to accept the key and that it is still at my office at your risk and disposal. I also hereby notify you that we will hold you subject to all the covenants of the lease, executed by you.

Very truly yours, Bernard Wiesenfeld."

The plaintiff not receiving a reply to the foregoing letter, a second letter dated June 3rd, 1898, was written the defendant as follows:

"Henry Oldewurtel, Esq.,

Dear Sir: — I herein beg to notify you that I intend to make an effert to get a tenant for the premises known as No. 507 South Broadway, without abandoning any rights, Mr. Miller and myself as executors and trustees may have against you as tenant under our lease to you for rent. In case we get a tenant we will allow you credit for such rent as we may collect, and hold you for the balance as due under your lease.

Yours truly, Bernard Wiesenfeld."

Subsequently a sign was put in the window of the premises that the property was for rent, and it was rented from time to time, and the defendant credited with the rent to the date of the expiration of the lease. The plaintiffs testified that they refused to accept a surrender of the premises, never made any alteration of the original lease, by a subsequent agreement, and never ousted the defendant from the premises, and that necessary repairs were made to the property. The defendant, on the other hand, testified that he vacated the property because it had been condemned by the building inspector of Baltimore, and was not tenantable, and he notified the clerk when he paid the rent that he would no longer be liable under the lease. There was other evidence in the case, but as the material facts are not disputed and have been heretofore stated it will not be necessary to further set them out. At the trial below, the Court granted the two prayers offered on the part of the plaintiff, and rejected those presented by the defendant, except the fifth. It also granted the plaintiff's special exception to the defendant's first prayer, that there was no legally sufficient evidence to show that the terms of the lease were ever modified by any legally binding agreement. The whole case was presented on the prayers and the special exception, and we shall proceed to consider them.

The prayers on the part of the plaintiff were demurrers to the evidence and were to the effect that as a matter of law there was no legally sufficient evidence of the acceptance of a surrender, or of an ouster by the plaintiff.

The general rule is well settled that to constitute a valid surrender of rented premises by a tenant during the term there must be the assent of both parties to the rescinding of the contract of renting, and such assent may be expressed or implied from such acts as would reasonably indicate that the parties have agreed that the tenant shall abandon the premises, and the landlord assume its possession. Biggs v. Stueler, 93 Md. 110.

The appellants admit that the defendant returned the key before the expiration of the lease. It was not accepted and therefore up to this time no surrender took place. It is further conceded that the plaintiffs had a right to enter for the purpose of taking care of the property, of repairing the premises and to put a "for rent sign" in the window.

But it is earnestly urged that the re-renting of the property for the benefit of the tenant without his assent was an acceptance of a surrender, an ouster of the tenant, and released him from liability for rent under the lease.

There are some authorities to the effect that a re-entry and reletting of abandoned premises by the landlord without the consent of the tenant, would create a surrender, by operation of law. Underhill v. Collins, 132 N.Y. 271; Gray v. Kaufman,162 N.Y. 388; Day v. Watson, 8 Mich. 535; Rice v. Dudley,65 Ala. 68.

The best approved cases, however, assert the contrary doctrine, and hold that where a tenant repudiates the lease, and abandons the demised premises, and the lessor enters and relets the property, that such re-renting does not relieve the tenant from the payment of the rent under the covenants of the lease. Auer v. Penn. 99 Pa. St. 370; Meyer v. Smith, 33 Ark. 627;Bloomer v. Merrill, 1 Daly, 485; Scott v. Beecher,91 Mich. 590; Rich v. Doyenn, 85 Hun. 510; Alsup v. Banks,68 Miss. 664.

In Biggs v. Stueler, 93 Md. 111, this Court said: "The acts upon which the appellee in this case relies to prove a surrender are the acceptance of the keys by the appellee, the repairs to the house and the reletting. But those are insufficient of themselves to show acceptance, unless under all the circumstances they are of such a character as to show a purpose on the part of the tenant to vacate and on the part of the landlord to resume possession, to the exclusion of the tenant."

In the case now under consideration all of the acts of the lessor, including the letters of June 2nd and 3rd clearly show that the appellees did not intend to accept a surrender of the property and to release the tenant from his liability for rent. On the contrary the letters distinctly state the property would be rented subject to the covenants of the lease and if a tenant could be secured, and rent collected, the lessee would be credited therewith, and be liable for the difference.

The case of Biggs v. Stueler, supra, is also relied upon by the appellant to sustain the proposition urged by him, that the assent of the tenant is absolutely necessary before the landlord can relet demised premises. In that case there was a statement that would seem to sustain the appellant's contention but an examination of the whole case, will clearly show that the case cannot be given such a construction. It was not necessary for the decision of the case, and would not be in accord with the conclusion reached by the Court, under the facts of the case.

As to the rulings of the Court on the first and second exceptions upon the admissibility of evidence but little need be said as the evidence was afterwards admitted, and the defendant was not injured thereby.

The plaintiff's special exception to the defendant's first prayer was properly sustained. There was no evidence legally sufficient to show that the terms of the lease had been modified by an oral agreement, and what was said by us on the demurrer to the declaration, disposes of this question.

For the reason we have given, the defendant's prayers were properly rejected, and as the correctness of the Court's rulings on the plaintiff's prayers established the right of the plaintiffs to recover, the judgment will be affirmed.

Judgment affirmed with costs.

(Decided April 2d 1903.)