
    [No. 8528.]
    Fehringer v. Wagner-Stockbridge Trading Company et al.
    1. Evidence — Burden of Proof. Defendant interposing- a plea in confession and avoidance has the burden of establishing his defense. (361.)
    2. -- Admissions. Conveyance of the demised premises by the landlord, without mentioning an existing lease, is no evidence of the landlord’s consent to a previous surrender by the tenant. (362.)
    3. Trial — Directed Verdict. When the defendant entirely fails to sustain an affirmative defense, the plaintiff is entitled to a directed verdict. (362.)
    4. Landlord and Tenant — Tenant’s Surrender not Accepted, does not release him from liability for the rent.
    Upon tenant’s vacating the premises, during the term, it is the landlord’s duty to assume possession, and his doing so is no acceptance of the surrender, and no waiver or release óf rents then accrued or subsequently accruing^ (362.)
    
      5. Appeal and Error — Judgment. The defendant pleading an affirmative defense failed to establish it. Judgment for defendant reversed and judgment for plaintiff ordered. (362.)
    
      Error to El Paso District Court. Hon. J. E. Little, Judge.
    Mr. William C. Robinson, for plaintiff in error.
    
    Messrs. ORR, Robinett & Mason, for- defendants in error. .
   Mr. Justice Garrigues

delivered the opinion of the court.

The complaint alleges that September 1,1911, the Wagner-Stockbridge Mercantile and Drug Company, a corporation, as lessor and owner, in consideration of $100.00 per month payable monthly in advance, leased lots 31 arid 32, Block 186 and lots 1, 2, 31 and 32, Block 157, Colorado City, Colorado, to defendants in error (defendants below) for five years, with all the improvements and buildings thereon; that defendants thereupon entered into the possession and occupancy of the premises and paid the rent-due up to April 1, 1913, but have failed and refused to pay it for the months of April, May, June and July, aggregating $400.00; that the claim was duly assigned by the lessor to plaintiff.

The answer admits the execution of the lease, occupancy of the premises as alleged, and the payment of all the rent until April 1, 1913, when it is alleged defendants surrendered possession and occupancy of the premises to plaintiff, which plaintiff accepted and released defendants from further payment of rent. The replication denied the new matter.

The court instructed the jury defendants admitted that they entered into the possession of and occupied the premises under’the lease, and paid the rent until April 1, 1913, at which time they claimed to have surrendered and delivered up the possession to the owner which was accepted, and defendants were released by the lessor from the further payment of rent; that plaintiff should recover unless the jury believed from the evidence that the lease was cancelled .by a surrender thereof, which surrender was accepted by the lessor; that if they believed from the evidence that defendants surrendered the lease and turned over possession to the owner, and that the owner accepted such surrender of the lease, took possession, and released defendants from the further payment of rent, they should find for defendants ; otherwise they should find for the plaintiff. The jury returned a verdict for the defendants.

Defendants admitted the execution of the lease, occupancy of the premises, and the payment of rent up to April 1, 1913, and that the April, May, June and July rent for 1913 was unpaid, but they claimed, they were released from the payment of this rent on account of the cancellation of the lease, by and through a surrender of the possession of the premises, which was accepted by the lessor. This was new matter, á plea in confession and avoidance, and upon this issue the burden of proof was upon defendants. They signally failed to sustain this burden, and the court should have granted plaintiff’s motion for a directed verdict. There were no conversations between the parties regarding this matter. There is no conflict in the evidence. It shows that April 9, 1913, defendants handed a letter and the keys of the premises to the secretary of the lessor, to whom they had formerly paid rent. The -letter stated in substance that the keys, together with the possession of the premises, and all the rights of the defendants under the lease, were surrendered and delivered to the owner. The letter was addressed to plaintiff Fehringer as president of the corporation, and further stated that on account of his absence from the city, the keys were left with "the secretary. About a month afterwards plaintiff returned, and May 9,1913, wrote a letter to defendants stating that they were not released from their obligation of paying the rent, which they would be expected to pay as provided in the lease, and demanded the amount due for April and May. June 16, 1913, plaintiff again wrote to defendants demanding payment- of the April, May and June rent, and it not being paid, suit was commenced July 5th. This is all the evidence there was on the subject, and it wholly fails to support the plea that the owner released defendants from further payment of rent upon vacating the premises. The evidence shows in addition, however, that in July, 1913, the owner sold and conveyed the premises to one McGugan and - the deed did not mention or refer to the lease, although the oral testimony shows that the lease was discussed with McGugan, and the property sold to him subject to the lease.

It is urged in argument that because the owner sold the property in July, and made no mention of the lease in the deed, that this was sufficient evidence upon which the jury could base a verdict for the defendants. We do not think so. There was an absence of any evidence that the owner accepted the surrender of the lease and premises, and released defendants from the further payment of rent thereunder. After defendants vacated the premises, it was the duty of the owner to take possession' of and care for the property, but this did not release defendants from the payment of rent and the jury had no right to so infer. When the premises were sold in July, there was four months rent due the owner under the terms- of the lease.

Eeversed and remanded with directions to the lower court to enter judgment for plaintiff in accordance with the views herein expressed.

Reversed and remanded with directions.

Chief Justice Gabbert and Mr. Justice Scott concur.  