
    [No. 7837.]
    The Symes Investing Company v. Wheelock.
    1. Landlokd and Tenant — Eviction—The tenant’s voluntary surrender of the premises is not an eviction.
    Nor is the landlord’s entry, after the abandonment of the premises hy the tenant. Especially is this true where such entry of the landlord is invited and consented to hy the tenant.
    2. -Concessions made by Landlord to New Tenant, After Surrender by a Former Tenant, prior to the lapse of his term must he borne hy the landlord.
    
      Error to the Denver County Court — Hon. George W. Dunn, Judge.
    Mr. J. Foster Symes, for plaintiff in error.
    Mr. Fred W. Parks, for defendant in error.
   Mr. Justice Bailey

delivered the opinion of the court.

The action was begun in a justice’s court, to recover from the defendant the sum of $266.50, a balance due on rent for the months of November and December, 1911, under a written lease of offices numbered 613 to 619 in the Symes Building, Denver, occupied by the Northwestern Mutual Life Insurance Company,' of which defendant was general agent. The justice of the peace gave judgment for $182.50 in favor of plaintiff. Defendant tendered $91.25, being the amount due under the lease to the 15th of November, and upon refusal of plaintiff to accept it appealed the case to the county court.

There were no pleadings, but a'l stipulation, filed before trial in the county court, shows that plaintiff is a corporation of the state, and owner of the Symes Building; that defendant had a lease from plaintiff of rooms 613 to 619 inclusive in that building, which expired December 31,-1911, at a monthly rentaLof $182.50; that defendant voluntarily vacated the premises on November 11th, 1911, and paid no rent for November and December of that year, but made tender of $91.25 and kept the same good, which plaintiff refused; that plaintiff received from other tenants for a part of the premises, as rental during November and December, the sum .of $98.50; that certain letters hereinafter set forth, passed between plaintiff and defendant; and that plaintiff, between November 15th and December 31st, 1911, made repairs and alterations on the premises at an approximate cost of $510.00 after defendant had vacated.

On September 28th, 1911, the defendant wrote plaintiff as follows:

“I shall vacate offices in the Symes Building at termination of lease. I expect to vacate offices on November 15th, and if you should desire to have same occupied by tenants from that time, satisfactory arrangements could probably be made.”

On October 19th following, the plaintiff answered:

“Referring to your letter of September 28th, beg to say that we will be glad to take over .any part of your space as fast as we rent it, on the understanding that we allow you the same price that we rent it for — provided we can have possession a few days ahead of time to make necessary changes.
“If this is satisfactory, please let us know the earliest date that we could have rooms 618 and 619.”

The defendant did not answer that letter. At various times after the exchange of the foregoing correspondence, and while defendant was still occupying the rooms, Mr. Symes, agent of plaintiff company, showed them to numerous prospective tenants in the presence of the defendant, who on such occasions said nothing, because, as he testified, he did not wish to embarrass Mr. Symes. The two had personally transacted no business for about two years. The 'business incident to the tenancy had been transacted with the cashier of defendant, who signed and delivered the rent checks. The first week in November Mr. Symes called to collect the rent for that month, and was requested by the cashier to wait until plaintiff had re-rented the rooms and adjust the rent later on, to which he acceeded. The Monday following the Saturday on which the defendant vacated the premises, plaintiff put workmen to cleaning and altering the rooms to suit new tenants. When defendant learned of this he wrote the following letter:

“I am enclosing you herewith my check for $91.25, being rent from November 1st to November 15th, and am sending you under separate cover, keys to the offices which I heretofore held under lease from you, in the Symes Building, as I notice you have taken possession of the premises and consequently terminated my lease.”

To. which plaintiff immediately replied:

“We beg to acknowledge receipt of your letter of November 15th, enclosing check for $91.25, which we return.
“We would be very glad to receive the same on account of November rent, per terms of your lease, or as rent to November 15th, but on the understanding that we have in no wise released you from the terms of your lease, which we expect you to carry out.
“You very well know that our understanding was that we are to allow you on your lease, credit for any rent we receive on your space, in accordance with our letter of October 19th, and our verbal conversation with your office. It was on this understanding that we put workmen in part of your rooms to make the necessary alterations for other tenants.
“If you desire the keys for any purpose we will be glad to send them back to you.”

The foregoing are the material and undisputed facts of the case.

The plaintiff sued to recover the balance due under the lease, being $365.00 for the months November and December, less $98.50, the amount received from other tenants during that period, or $266.50. At the conclusion of the testimony defendant moved a non-suit, plaintiff moved for a directed verdict, and defendant, in turn, moved for a directed verdict in favor of plaintiff for $91.25, the amount tendered, all of which motions the court overruled. The jury were instructed, retired and returned a verdict for plaintiff for $91.25. Plaintiff’s motion for a new trial was overruled, and it prosecutes this writ of error.

Plaintiff in error contends that under the facts the question of eviction is not involved, and that the court-erred .in submitting it to the jury. If the facts raise the question, it was properly submitted, and the judgment may not be disturbed; if not, the court should have directed a verdict for plaintiff for $266.50 less free rent.

It is fundamental that a tenant cannot, by voluntarily surrendering possession of the premises, evict himself. Letteck v. Holland, 63 Ill. 335. The renting of other quarters by defendant, notice of. vacation on a certain date and vacation of the premises accordingly, constituted an abandonment, and entry thereafter by the landlord was not an eviction. Humiston et al. v. Wheeler, 175 Ill. 516, 51 N. E. 803. It is essential to even constructive eviction that the conduct of the landlord he more than a mere trespass and such as to effectually deprive the tenant of the use and benefit of all or some part of the premises. 2 Underhill on Landlord and Tenant, §§670, 671. In the case at bar the plaintiff entered upon the premises at the invitation of the defendant. If defendant had not written the letter of September 28th, showing a desire to have the premises occupied and inviting plaintiff to act to that end, no controversy could have arisen. The plaintiff acted upon the suggestion of the defendant and accepted the proposal, with the request that, if ,the terms of acceptance were satisfactory, it be advised when certain of the rooms could be had. The defendant made no answer to that letter, but for over three weeks kept silent, during which time the plaintiff showed the premises to numerous prospective tenants in Ms presence and in the presence of his cashier. It is not apparent why embarassment would have resulted to the plaintiff’s agent from anything which defendant might have said on such occasions respecting their relations under the lease. It was not until after he had vacated the rooms, when he learned that plaintiff was altering and cleaning them, that he denied his liability under the lease, because, as he claims, “satisfactory arrangements” had not been made for a new tenant. Considering his letter of September' 28th, the plaintiff’s reply thereto, together with what followed as a consequence of those letters, the defendant should have been as solicitous to ascertain the true conditions, regardless of the fact that he was about to vacate, as he evidently was to escape a valid obligation through circumstances which he apparently thought favorable to the accomplishment of that result. It is a fair conclusion from the undisputed facts that defendant knew, or should have known, the entire situation. To declare that the acts of plaintiff, invited as they were by the defendant and by his silence approved, amount to an eviction, would he not only contrary to law, hut against good conscience, and would lend encouragement to others to attempt by like methods to escape just obligations. There is a total absence of facts even tending to show an eviction. The motion of plaintiff for a directed verdict should have been sustained.

This case is clearly distinguishable from those cited by defendant in error to support the contention that there was evidence of an eviction. Neither of those cases are upon the facts even analagous to this one. We do not question the law as stated in Hyman v. Jockey Club Co., 9 Colo. App. 300, 48 Pac. 671. In that case there was a forcible entry and detainer, the sheriff holding-the premises for some days under orders from the landlord before turning over tlm keys to 'the ' latter. Such, acts were there held to amount to an eviction in law. The principles upon which that decision was based are, quoting from the opinion, as follows:

“The rule of law is well settled, that, if the lessor himself wrongfully deprives the tenant of the whole or any part of the premises, the tenant is discharged from the payment of the whole rent until the possession is restored. Tayl. Landl. & Ten., secs. 378-380. In 2 Wood, Landl. & Ten. 1096, the rule is stated that: [An actual expulsion of the tenant, or intentional disturbance by the landlord, or by any other person acting by his authority, or by virtue of a legal right vested in them in any manner, which so seriously disturbs the tenant’s possession as to compel an abandonment of the premises by him, or which deprives him of their beneficial enjoyment, amounts to an eviction, and the rent is suspended from the time of such disturbance.”

The court there held that the acts'shown amounted to a wrongful deprivation of possession of the premises and an actual expulsion or intentional disturbance of the tenancy, committed by or through the landlord. And in the case of MacKeller v. Sigler, 47 Howard Prac. Rep., 20, the tenant abandoned because the premises had become unfit for occupancy because of an overflow of water from an adjoining house, and thereafter the landlord entered to make repairs, and relet the ’ house to another, of his own motion. The gist of that decision is based upon the rule contained in the following quotation from the opinion therein:

“In the absence of a stipulation to that effect, in the agreement, creating the tenancy, the landlord lias no right, except, perhaps, where it may be requisite to prevent waste, to enter the demised premises during the term, without the consent of his tenant, to make repairs ; and if he does, he will be deemed a trespasser, and become liable as such.”

In one of the foregoing cases the landlord forcibly evicted the tenant, and in the other he took possession of the premises after the tenant had been driven from the house by an overflow of water from adjoining property. In the case at bar there was no wrongful deprivation, actual expulsion or intentional disturbance, nor was the entry without the consent of the tenant. On the contrary, the landlord went into possession not only with the consent, hut by the invitation of his tenant. So that it is manifest these conditions have no application here.

The plaintiff allowed each of the new tenants free rent from the date of taking possession to the 1st of December, 1911. In one instance the time was three days on a basis of $35.00 a month, or $3.50, and in the other, seven days on a basis of $720.00 a year, or $13.80, a total of $17.30. This loss properly belongs to plaintiff. The judgment is reversed and the cause remanded, with directions to the court below to enter judgment for plaintiff, as of date March 28th, 1912, in the sum of $249.20, the amount claimed less -free rent.

Judgment reversed..

Decision en banc.

Mr. Justice Hill and Mr. Justice Gtabbebt dissent,

Mr. Justice Hill dissenting:

Mr. Justice Hill

dissenting:

I cannot agree with the conclusion that the question of eviction is not involved. As I read the evidence it fails to disclose conclusively that the plaintiff entered upon the premises for the purpose of making the repairs at the invitation of the defendant, or that there ever was a meeting of the minds of the parties upon any agreed line to be followed. Neither is the evidence conclusive of the fact that the defendant had abandoned the premises at the time plaintiff took possession. To the contrary the evidence of Mr. Wheelock discloses that at the time the plaintiff took possession he had not surrendered the keys; that- Ms first knowledge of the plaintiff’s possession was when he sent there for something, which he wanted in the offices. This evidence conld he properly construed to mean that he still had some things left there. He testified that his sign had been removed from the door; that all of these acts were without his knowledge or consent. Under this state of facts I think the question of eviction was properly submitted to the jury. This position is sustained by the authorities.— Hyman v. Jockey Club Co., 9 Colo. App. 299, 48 Pac. 671; MacKellar v. Sigler, 47 How. Prac. (N. Y.) 20; Jones on Landlord and Tenant (1906 Ed.), §548.

Mr. Wheelock’s first letter states if plaintiff should desire to have the offices occupied by tenants, satisfactory ^ arrangements could probably be made. To my mind the evidence is not conclusive that' satisfactory or any arrangements were ever made with the defendant concerning this subject, or the right to make permanent changes during the period of his lease. The fact that the defendant did not reply to the plaintiff’s letter of October the 19th would not avoid the rule that surrender was effected by the actions of the landlord.— Gray v. Kaufman Dairy & I. C. Co., 162 N. Y. 388, 56 Pac. 903, 49 L. R. A. 580, 76 Am. St. Rep. 327.

By the terms of the defendánt’s first letter if the plaintiff desired possession prior to the termination of the defendant’s .lease or prior to his surrender of the property in turning over the keys, etc., it was incumbent upon its manager to have seen the defendant and secured an understanding concerning it, as well as the privilege to have made repairs during the remainder of the term. The plaintiff entered into possession about six weeks prior to the expiration of the defendant’s term. During a part of this period it made permanent changes, improvements and repairs at a cost in excess-of $500. This was not for the purpose of securing tenants for the unexpired portion of the defendant’s term, but was for the benefit of the plaintiff in order to secure new tenants, which it did, whose leases run for a term of years. During the time that these changes and improvements were being made the premises were unfit for ocupancy. To my mind all of these facts were properly submitted, to the jury as evidence pertaining to the termination of the tenancy by the plaintiff.—Carson v. Arvantes, 10 Colo. App. 382, 50 Pac. 1080.

Mr. Justice Gabbert concurs in the views herein expressed.  