Alschuler v. Schiff , 59 Ill. App. 51 ( 1895 )

Me. Justice Shepabd

delivered the opinion of the Court.

This was an action for rent for the months of February, March and April, 1894, which accrued upon a lease, under seal, of certain premises for the term of one year ending April 30, 1894.

The defense was an accepted surrender of the premises under an oral agreement by the parties to terminate the lease at the end of January, 1894.

The court struck out the evidence introduced by the defendant, the appellant here, tending to support the oral agreement, and surrender thereunder, and instructed the jury to bring in a verdict for the amount claimed by the appellee, which was done, and from the judgment entered upon the verdict this appeal is prosecuted.

The evidence offered by the plaintiff was confined to the introduction of the lease itself, and proof that the rent for the three months in question was unpaid.

Gn the part of the defendant (appellant), the evidence that was introduced is summarized in his brief, with the “ statement, as follows:

“ The evidence upon which the surrender rests is substantially as follows:

On or about the 7th day of January, 1894, the landlord, Schiff, asked for the January rent, 1894, which by the terms of the lease was due on the first of January, 1894. The tenant, Alschuler, stated to the landlord, ‘ I will pay the rent, but I want you to fix up the place. I am damaged here every day, and I can not stay here until it is fixed.’ Schiff said, ‘ I won’t fix anything for you. If you don’t want to stay here you can move out; ’ and the tenant said, ‘All right.’

The tenant at once acted upon the arrangement, procured another place, and moved into it. He gave the key to the premises to his bookkeeper, and he took it to the landlord, Schiff, by leaving it with his wife, who said she was glad of it.

The evidence of O. S. Maser (the bookkeeper) showed that Schiff was met the same evening by him, aiid they had a talk about the keys. Schiff told him he was much obliged to him for bringing them, and he asked the witness to come into a saloon to take something to drink, because he had done him a big favor.”

In order that the substance of all the evidence may be seen there should be added to the foregoing that the appellant moved out of the premises on the last day, or the last day but one, of January, and it was then that the key was delivered to appellee’s wife; that thereafter the premises remained vacant until after the expiration of the term specified in the lease; that the lease contained covenants acknowledging that the lessee had received the premises in good order and that he would keep them in good repair at his own expense, and that the appellant testified to having received, a week or two after he moved out, a notice dated February first, 1893, signed by the appellee, repudiating authority by his, appellee’s, wife, to accept the key, and refusing to accept a surrender of the lease, and stating that he would hold appellant to the terms thereof.

The appellee introduced no evidence in rebuttal, and the question is, whether, under the evidence introduced by the appellant,' there was error in taking the case from the jury by the peremptory instruction to find for the appellee.

This is not the case of an accepted surrender of a lease under seal, nor that of an agreement to surrender in the future, followed by an acceptance.

All the conversation had between the parties, stated to have occurred on or about the 7th or 8th of January, assuming, as we must, that it took place just as testified to, amounted to no valid agreement. Its effect was to vary by parol the terms of a sealed instrument, and as such was void. Lewis v. Fish, 40 Ill. App. 372.

And there was nothing shown to have occurred later that amounted to an acceptance by appellee of a surrender. The leaving of the key with appellee’s wife did not bind him. There was no attempt to prove that she had authority to accept a surrender of the premises, and such authority will not be presumed. All that was done with the key was the act of the appellant only, and a lease can not be surrendered by the act of one party alone. Lewis v. Fish, supra; Stobie v. Dills, 62 Ill. 452.

The testimony of Maser, the bookkeeper, concerning the talk he had with appellee about the keys, is too indefinite to be treated as any evidence of an acceptance of surrender. The whole of his evidence on the subject of that conversation, taken from the transcript, is as follows:

“ Q. Did you ever have any talk with Mr. Schiff about these keys ? A. I met him the same evening and he told me he was much obliged, and told me to come in a saloon and take something because I done him a big favor.”

Such evidence has no tendency to prove the acceptance of a surrender of the lease, or of the keys, even. Had it been submitted to the jury and they had found in favor of the appellant, it would have been the duty of the court to have set aside the verdict, on the ground that the evidence did not sustain an accepted surrender. Simmons v. Chicago & Tomah R. R. Co., 110. Ill. 340; Bartelott v. International Bank, 119 Ill. 259.

There was no other evidence offered tending in any manner to show an acceptance of the attempted surrender, and we think there was no error in the judgment, and it will be affirmed.

Mb. Justice Gary; I dissent.