
    Rosenberger v. Hearsnip.
    (Decided February 10, 1930.)
    
      Mr. Charles TV. Davis, for plaintiff fin error.
    
      Messrs. Miller, Miller S Brady, for defendant in error.
   Williams, J.

On June 3,1925, Joseph Bosenberger, the plaintiff below, leased certain premises located at 832 Ash street, in the city of Toledo, to William D. Hearsnip, the defendant below, for a period of three years from and after June 15, 1925, at a rental of $1,020 per year, payable in installments of $85 per month. The defendant went into possession and occupied and used a part of the premises in carrying on a grocery store. After occupying the premises for about five months, he assigned the lease to Albert E. Meals. Meals permitted the premises to be occupied by his son-in-law and daughter for a short time, and during that time Meals paid rental to the plaintiff. After a month or so one Zoller took over the property from Meals and occupied it. Zoller paid all the rent up to May, 1927, and $50 on the installment for the month of May. Zoller left the premises about June 1, 1927, claiming that he had sold his interest and transferred his lease to one Rieger; but no rent was ever paid after the said payment of $50.

It is undisputed that there never was any conversation between the plaintiff and the defendant about the surrender of the premises or the cancellation of the lease.

The action was brought by the plaintiff, Rosenberger, in the court below, to recover from the defendant the rent unpaid for the balance of the three-year term. Upon trial there was a verdict for the defendant, and plaintiff below prosecutes this proceeding in error.

Plaintiff in error maintains that the court below should have directed a verdict for the plaintiff, and that final judgment should be entered in this court in favor of plaintiff in error for the amount of the rental, but does not urge the matter of damages pleaded in the petition.

It is well settled that a lessee is not relieved from his obligation to pay the stipulated rental by the mere assignment of the lease to a third party, even though the lessor assents thereto. 16 Ruling Case Law, 843, Section 343; 36 Corpus Juris, 371, Section 1227; Taylor v. De Bus, 31 Ohio St., 468; Nova Cesarea Harmony Lodge No. 2 v. White, 30 Ohio St., 569, 27 Am. Rep., 492; Blosser v. Enderlin, 113 Ohio St., 121, 148 N. E., 393.

The defendant below offered evidence tending to show that, when Meals sold out to Zoller, they went together to see the plaintiff, Rosenberger, and that they had a conversation there in which Meals asked the plaintiff, Rosenberger, about letting Zoller have the place; that the plaintiff stated that the lease was void and-that, if Zoller wanted to rent the store by the month, he would rent it to him and would make a lease later on; and that thereupon the plaintiff rented the premises to Zoller at $85 per month. Defendant below also offered evidence tending to show that, after the above conversation and alleged agreement, Zoller occupied the premises and paid rent to the plaintiff.

Did this conversation and alleged agreement amount to a defense? When the defendant assigned the lease to Meals, and Meals took possession, the defendant no longer retained any interest or estate in the premises. From that time on the leasehold estate and all rights under the lease belonged to Meals, and Meals was obligated in the first instance to pay the rental, although there was a secondary liability still resting on the defendant. When Meals went with Zoller to see the plaintiff, Meals was the only one who could cancel the lease and surrender the premises, and the evidence tends to show that Meals assented to the alleged new agreement for rental of the premises made between the plaintiff and Zoller, and consented to the termination of the old lease. The defendant could not prevent the cancellation of the old lease as he had assigned it to another; nor was defendant’s consent to cancellation and surrender necessary. It is true the lease between Zoller and the plaintiff was verbal, but Zoller had possession and occupied the premises under the verbal agreement of lease and it became binding and enforcible. If the jury believed the evidence adduced by the defendant, it was warranted in finding that there was a cancellation of the original lease and surrender of the premises; that a new lease was entered into which was binding and valid; and that the defendant was not liable for rental under the old lease after cancellation and surrender. We are unable to say that the finding of the jury in favor of the defendant is against the weight of the evidence, and, as the evidence tended to establish the defense made by defendant, the court committed no error in refusing to direct a verdict in favor of the plaintiff.

We have examined the charge complained of, which reads as follows: “Now the law of landlord and tenant requires this in a case of this kind, — if the tenant leaves premises leased before expiration of term, the landlord is bound to use ordinary and reasonable diligence to rent place to another for the best terms he can secure, and in the event tenant leaves property and landlord does use reasonable diligence to secure new tenant, or does secure a new tenant at less amount, then original tenant is liable to landlord for full sum of rent accruing during term of lease, but less whatever the landlord was able to secure * * V’

This statement of the law was erroneous. In White v. Smith, 8 Ohio App., 368, the law is correctly stated in the syllabus, as follows: “Where a tenant abandons the leased premises the landlord is under no legal obligation to relet such premises, and in an action to recover the rentals accruing after such abandonment the tenant cannot interpose as a defense want of reasonable diligence to re-rent the same.”

The charge as given precluded the plaintiff from recovery if he did not use reasonable diligence to re-rent the premises. This charge was not only erroneous, but was also clearly prejudicial to plaintiff in error and compels a reversal of the judgment.

Judgment reversed and cause remanded.

Lloyd and Richards, JJ., concur.  