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

SAMFORD, J.

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.

[1-3] 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 R. 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 South. 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 facis, 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.