Hesseltine v. Seavey , 16 Me. 212 ( 1839 )

The opinion of the Court was by

Shepley J.

Since the statute of frauds there is no doubt, that a surrender of a lease can be legally proved, only by deed or note in writing, or by act and operation of law. In this case, there was no proof of any deed or note in writing or of any fact, that would shew a surrender by act or operation of law. And that part of the defendant’s brief statement, which alleges a surrender of the lease, cannot be regarded as legally proved.

The brief statement proceeds further, and alleges, that the lessee quitted the premises, and “ that thereupon, the said lessors leased the premises to one Advardis Shaw, who entered and continued to occupy the same during the whole term then to come.” And the plaintiffs took issue upon this allegation of the defendant. The testimony was properly admitted to prove the facts thus put in issue by the parties. Whether if proved they would amount to a legal surrender, or what their effect might be would still be a question for the Court. - •

The instructions did not place the exemption of the defendant from the further payment of rent upon the ground of a surrender of the lease, but upon the defendant’s proof of the truth of his brief statement so far as it stated facts. And the question is, whether the facts proved discharged the defendant from the further payment of rent.

The case of Randall v. Rich, 14 Mass. R. 494, so far as relates to the tenancy, was much like the present; and the Court stated several views, which might be taken of the transactions, by which the defendant would be discharged. One was, that the lessee might be regarded as ousted by the lessor. If the lessors as in this case, accept the key, and put in another tenant, who remains to the end of the term, they may well be regarded as having so conducted, that they cannot be permitted to deny, that they have ousted the lessee ; and in such case, no rent is recoverable.

Exceptions overruled.