
    Pascoe Apartment House Company, Appellant, v. Eno.
    
      Landlord and tenant — Surrender of premises — Evidence—Question for jury.
    
    In an action by the owner of an apartment house to recover three months’ rental for an apartment after the defendant had vacated it, it appeared that the plaintiff had executed a yearly lease of the apartment, but that the defendant had not executed it. The defendant claimed that he was in the apartment under an oral lease from month to month, and that he had not agreed to sign a yearly lease. This was denied by the plaintiff. There was evidence that at the time defendant vacated the apartment the defendant’s wife gave the key to the clerk who accepted it without objection, and bade her a friendly farewell. Held, that the question whether the plaintiff intended to accept a surrender of the apartment, was for the jury, and that a verdict and judgment for defendant should be sustained.
    Argued Oct. 23,1907.
    Appeal, No. 8, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T;, 1905, No. 2,808, on verdict for defendant in case of Pascoe Apartment House Company v. Paul Eno.'
    Before Rice, P. J., Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Assumpsit for three months’ rent, accruing in January, February and March, 1905. Before Audendried, J.
    At the trial it appeared that on September 28, 1903, the defendant took possession of a suite of apartments in the plaintiff’s apartment house. He claimed that he rented the apartment by the month. It appeared, however, that the plaintiff had executed a yearly'lease, and there was evidence that the defendant had agreed to execute this lease. The defendant, however, never did execute it. On January 28,1905, defendant and his wife left the house under circumstances described by the court in its charge as follows :
    That brings us into a careful consideration of the circumstances of the Enos departure from the apartment house. They left on January 25, 1905. They had threatened for some time before their departure to go. Mrs. Eno tells of the conversations which went on between her and Noll, the clerk of the apartment house: “I am going;” “Oh, no,” says Mr. Noll, “I guess not; you won’t go.” “Yes, I will,” says Mrs. Eno. That is her testimony. Mr. Eno seems to have had a conversa-. tion with Mr. Young on the subject of going. Mr. Young tells you that he explained to Mr. Eno that he regarded him as being bound for the full year and that if he went out it would be with the understanding that he would continue to pay his rent. Young does not tell you that Eno consented to that view of the matter at that time. Mrs. Eno tells you what transpired between her and Mr. Noll, January 25. The Enos had already moved some, if not all, of their possessions, from the apartment house. Mrs. Eno came back to get something which still remained, and to give up the key. She put the key in Mr. Noll’s' hands, and said, “good-by.” And they shook hands. He expressed some good wishes for her and she went off.
    [There seems to have been no effort made on the part of the plaintiff to hold the defendant’s goods. That might, however, be because Mr. Young regarded Mr. Eno of sufficient financial responsibility to answer for whatever rent he was obliged to pay without recourse to a lien on his goods; “but it would seem to me that if we are to infer from what passed between Mr.Noll and Mrs. Eno that this key was accepted unconditionally on behalf of the plaintiff, I say it would seem to me, however, that possibly the management of the apartment house had changed its mind, and that it was intended by its representatives to accept the surrender of the apartments which the Enos had occupied. If this view is correct, the defendant is relieved of further obligation to pay rent.] [1] Consider this matter and make up your minds whether under the circumstances it can be inferred that the intention of both parties, not of the Enos only, but of the plaintiff as well, was that their relation of landlord and tenant should be dissolved, and that all obligations of one party to the other should thereafter cease and be ended. If such an intention existed on the part of both parties, then the obligation of the defendant i^at an end, and there can be no recovery against him in this case. Upon the other hand, no matter what Mr. Eno may have thought, if it was not intended on the part of the management of the apartment house to release Eno from his duty to pay rent, supposing that he, under the law, was bound to further payments after he actually vacated the property, your verdict ought to be in favor of the plaintiff for the amount of the plaintiff’s claim with interest from March 28, 1905.
    Verdict and judgment for defendant. Plaintiff appealed.
    
      Errors assigned were (1) portions of charge as above, quoting it; and (2) in submitting to the jury the question of the surrender of the demised premises.
    
      A. B. Bepetto, for appellant.
    — Generally when a party who has not put his name to a written contracts accept it when signed and sealed by the other, it binds him the same as if he had executed it: Jennings v. McComb, 112 Pa. 518; Grove v. Hodges, 55 Pa. 504; Natural Gas Co. v. Phila. Co., 158 Pa. 317.
    To avoid liability upon the ground that defendant surrendered the demised premises, the burden is upon him to prove an acceptance of the surrender; he sets it up to relieve himself from his covenant and he must prove it: Auer v. Penn, 99 Pa. 370; Railroad Co. v. Egbert, 152 Pa. 53; Murphy v. Losch, 148 Pa. 171; Haines v. Stouffer, 10 Pa. 363.
    February 28, 1908:
    
      Louis M. Fridenberg, for appellee.
    — Where a tenant leases property by the month at a monthly rental, nothing being said at the time of the letting of a yearly contract, no subsequent act of the landlord can change the term from a monthly to a yearly tenancy without the express agreement and consent of the tenant: Hollis v. Burns, 100 Pa. 206; Hood v. Drys-dale, 27 Pa. Superior Ct. 540.
    Where the terms of the letting aré in dispute, the question is for the jury: Folsom v. Cook, 115 Pa. 539; Johnson v. Smith, 165 Pa. 195; Guernsey v. Froude, 13 Pa. Superior Ct. 405; Milling v. Becker, 96 Pa. 182.
    The' acceptance of the keys of the apartment by Mr. Noll, the agent, from Mrs. Eno without any comment or condition was evidence of intention to accept the surrender, and was therefore properly submitted to the jury: Weightman v. Harley, 20 Weekly Notes of Cases, 470; Dos Santos v. Hollinshead, 4 Phila. 57; Cairns v. Llewellyn, 2 Pa. Superior Ct. 599; Bradley v. Brown, 6 Weekly Notes of Cases, 282.
   Opinion by

Oblady, J.,

This action of assumpsit was brought to recover rent, claimed to be due from the defendant for the first three months subsequent to his vacating a suite of rooms in the plaintiff’s apartment house. The only assignment of error on which appellant relies relates to an excerpt taken from the charge of the court in which it is suggested, under one view of the evidence, the • appellant might have intended to accept a surrender of the apartments which the defendant had occupied, and the trial judge, added: “If that view is correct the defendant is relieved Of further obligations to pay rent.” This expression was immediately followed by the statement: “Consider'this matter and make up your minds whether under the circumstances it can. be inferred that the intention of both parties, not of the Enos only, but of the plaintiffs as well, was that their relation of landlord and tenant should be dissolved, and that all obligations of one party to the other should thereafter cease and be ended.” Taking the charge in its entirety, the whole question, in dispute was fairly left to the jury to pass upon the respective contentions of the plaintiff and the defendant. It being purely a question of fact, and having been fairly submitted to the only tribunal authorized to pass upon it, we have nothing to do with the conclusion reached by the jury. The second assignment urges that the trial judge erred in submitting to the. jury the question of surrender of the demised premises, but this contention was as important from the defendant’s standpoint as the primary one of whether he had in fact made a lease for the rooms for a term of one year. They were not incompatible or contradictory defenses. The assignments of error are overruled, and the judgment is affirmed.  