
    Henry Doty v. Jason Gillett and Robert Eales.
    
      Rent — Action against strangers to lease.
    
    Recovery for the use and occupation of leased premises cannot be had against others than the lessees during the term of the lease if it has not been assigned or the lessees discharged from liability, or if they have not surrendered their interest or known or assented to any new lease that may have been made to the others.
    Abandonment or surrender of interests in real estate cannot be inferred from non-user alone.
    A witness may be contradicted by showing that he gave materially different testimony on a former trial or did not testify at all to matters to which he did testify at the later one. But the witness may explain the variance and omissions.
    Where an action for use and occupation was brought against one of the original lessees and a stranger to the lease, and supported by evidence that the defendants acted as co-partners, the latter may show their actual relation, and the contract between them may be put in evidence. They may also show that the stranger had agreed to pay what would have been his proportion of the rent under the lease to his co-defendant.
    Judgment will not be reversed for the omission to charge on a question fairly within the issue but not raised on the trial.
    'Error to Alpena".
    Submitted January 9 and 13.
    Decided April 8.
    Assumpsit. Plaintiff brings error.
    
      Kelley é Clayberg for plaintiff in error.
    An occupant of land already leased, but who bas entered under an independent agreement, or by permission, without reference to the old lease, or objection by the first lessee, cannot set up the former lease in defense to an action for use and occupation (Phipps v. Sculthorpe 1 JB. & Aid. 50; Prevot v. Lawrence 51 N T. 222; Scott v. Hawsman 2 McL. 180) so, if the second lease recites the existence of the first, Duke v. Ashby 7 H. & N. 600; Cuilibertson v. Irving 4 id. 742: 6 id. 135; Holt v. Martin 51 Penn. St. 499; Jolly v. Arbuthnot 4 DeG. & J. 224; Dancer v. 
      
      Hastings 12 Moore 34; Morton v. Woods L. E. 4 Q. B. 293; Cornish v. Secwell 8 B. & C. 471; Eyerson v. Eldred 18 Mich. 12; a lessee may surrender his interest by abandonment if the lessor acquiesces or takes possession of the premises or lets them to or receives rent from another person, Baker v. Pratt 15 111. 568; Talbot v. Whipple 14 Allen 180; Amory v. Kannoffsky 117 Mass. 351; McKinney v. Reader 7 Watts 123; Thomas v. Cook 2 B. & Aid. 119; Walker v. Richardson 2 M. & W. 882; Nickels v. Atherstone 10 Q. B. 944; Davison v. Cent 1 EL & N 744; Phene v. Popplewell 12 C. B. (N. S.) 334; Qrimman v. Legge 8 B. & C. 324; Hill v. Robinson 23 Mich. 24; Logan v. Anderson 2 Doug. (Mich.) 101; Beall v. White 94 U. S. 382; Nelson v. Thompson 23 Minn. 508; Witman v. Watry 31 Wis. 638; Donkersley v. Levy 38 Mich. 54; 1 Washb. E. P. 552; a new agreement with the lessor, or permission to occupy may be implied from acts of the parties (White v. Walker 31 111. 422; Fry v. Patridge 73 111. 51) independently of their intention, Lyon v. Reed 13 M. & W. 306.
    
      Turnbull é McDonald for defendants in error.
    A lessor cannot recover for use and occupation when there is an outstanding lease to other parties, unless it has been surrendered or assigned, Bedford v. Terhune 30 N Y. 453; the owner of premises cannot recover rent from one who has entered under an express promise to pay rent to another, Shumake v. Nelm 25 Ala. 26; Carver v. Palmer 33 Mich. 342; Austin v. Thomson 45 N EL 113; evidence of what a witness has sworn to in a previous trial is admissible for impeachment, Fisher v. Kyle 27 Mich. 455; a surrender of a lease must be in writing or the tenant must actually surrender and the lessor accept possession, 1 Washb. E. P. § 353; Taylor’s L. & T. § 515; Brewer v. Dyer 7 Cush. 337; Bailey v. Wells 8 Wis. 141; if instructions are desired on a special point, they must be asked, Platt v. Brand 26 Mich. 174; a point cannot be first raised on appeal, Emerson v. Booth 51 Barb. 40.
   Marston, C. J.

This action was brought to recover for the use and occupation of a shingle' mill, and evidence was introduced on the part of the plaintiff tending to prove that defendants were copartners in the business of manufacturing shingles in that mill, and that they occupied the same during the year 1874 and a part of 1875 under an express agreement made with the-agent of the plaintiff, and under which they were to pay rent at the rate of $750 per year.

The defendants did not deny such copartnership or occupancy of the mill, but denied holding it under any such agreement.

They introduced evidence, which was not disputed, that June 16th, 1873, the plaintiff by his agent, by an instrument in writing, leased the premises for the sawing season of 1873 and 1874 to Robert Eales, one of the above defendants, and E. I). Spratt, for a yearly rental of $750. The defendants also introduced evidence tending to show that Eales and Spratt entered into possession of the premises under this lease; that a new arrangement was entered into between Eales and Spratt under which the former operated the mill during the season of 1873; that in the fall of that year Eales offered to surrender up possession of the mill to plaintiff’s agent, which was not accepted; that in 1874 Eales and defendant Gillett entered into an agreement under which they were to operate the mill as copartners, and under which Gillett was to pay or be responsible to Eales for one-half the rent as fixed by the Eales-Spratt lease. There was no evidence that such agreement was fully brought to the notice of plaintiff or his agent, or that h.é, or any person representing him, had at any time released Spratt, or that the latter had assigned his rights under the lease of June 16th. Upon this branch of the case the court charged the jury as to the right of Eales and Spratt under their lease, and that if the same remained in full force, and had not been assigned by Spratt, or his interest and right thereunder terminated by operation of law, the defendants would not be liable in this action.

The court also charged the jury in substance that to constitute a surrender by Spratt there must be some act of the parties — some positive, some affirmative act; that mere non-occupancy by remaining from day to day merely passive and doing nothing under the actual occupancy of a building, would not amount to a surrender of a lease; that if the plaintiff executed a new lease to Spratt and Eales or to their assignees they could find a surrender by operation of law, but if they found a new lease to one of them only, and that the other had not altered or interfered with the estate in any way, or his title to it, — in other words, if the jury should find that “ Spratt’s interest has alone remained the same all the way through — that there was no positive act on his part throwing it up or giving it away — then in that case this plaintiff cannot recover.”

There can be no question but that if the lease to Spratt and Eales remained in force and had not been assigned, the plaintiff could not recover from these defendants for use and occupation of the premises during such period. Carver v. Palmer 33 Mich. 342; Donkersley v. Levy 38 Mich. 59.

While we may assume that there was competent testimony tending to show an oral lease of these premises by the plaintiff to the defendants, and an occupancy thereunder, yet there was no evidence whatever that Spratt had ever formally withdrawn or surrendered up his interest under the written lease, or had at any time been discharged from his liability to the plaintiff thereunder, or that the new lease to these defendants was with his knowledge or assent.

The facts, therefore, do not bring this case within Logan v. Anderson 2 Doug. (Mich.) 102 and Donkersley v. Levy supra. Nor was there any evidence from which the jury would have been at liberty to have found a surrender by Spratt of his interest under the lease. Eights and interests in real estate cannot, by inference from non-user alone, safely be considered as having been abandoned or surrendered. Tbe fact that Eales, under an agreement with Spratt, occupied the premises and conducted tbe business, either alone or with a partner, would not be at all inconsistent with tbe fact that Spratt still retained bis interest in tbe lease, and that be was still liable thereunder to pay rent. Even a recognition of tbe. parties in possession by tbe landlord would not cut off Spratt’s rights under tbe lease, unless be assented to tbe new arrangement, and in this case no such assent, either express or to be implied from tbe facts, was. shown. 1 Washburn on Eeal Pr. 477-8-9.

Error is also alleged in that tbe court permitted evidence given by one of plaintiff’s witnesses on a former trial of this cause, to be shown for tbe purpose of contradicting tbe testimony given by tbe witness on tbe present trial. We bad supposed that there could be no question as to tbe admissibility and competency of such testimony for such purpose where tbe proper foundation was laid therefor, as was done in this ease. It is proper to show that tbe evidence given by tbe witness on tbe previous trial was materially different, or that be did not then testify at all concerning matters of which be has testified on tbe subsequent trial. All these contradictions and omissions are open to explanation by tbe witness, but tbe opposite party has a right to inquire into tbe same.

Tbe agreement between tbe defendants was properly received in evidence. Tbe plaintiff bad introduced evidence tending to prove that tbe defendants occupied tbe mill and carried on business as copartners. They bad a right, therefore, to show tbe relation existing between them. We think it was competent for another purpose also to show that defendant Gillett bad agreed to pay bis proportion of tbe rent to bis copartner Eales, under tbe Eales and Spratt lease, as a recognition of such lease by Gillett, and in support of his theory and denial of any agreement to lease from or pay rent to tbe plaintiff.

It is also claimed that admitting tbe Eales and Spratt lease to have remained in full force, yet as that lease expired in 1874 the plaintiff was entitled to recover for the time occupied by defendants in 1875. Conceding this position to be correct, yet the attention of the court was not called thereto, find no request was made to charge upon that theory. The plaintiff claimed to recover for the entire time which the defendants used and occupied the premises. The whole case turned upon the continuing validity of the Eal'es and Spratt lease, and the short period during which the premises were occupied after the expiration of that lease was apparently lost sight of except as included in the whole claim made.

We cannot reverse because of an omission to charge upon a question which might have been raised, but was not, on the trial, even although the same was fairly covered by or included in the issue.

The judgment must be affirmed with costs.

The other Justices concurred.  