
    No. 606
    BURKE, et v. PFEFFERLE
    Ohio Appeals, 3rd Dist., Hardin Co.
    No. 173.
    Decided Jan. 20, 1927.
    708. LEASES — 1. Where building is leased for use as automobile display and sales room, order of Department of Workshops and Buildings, against storage of more than two automobiles with gasoline therein, not sufficient grounds for surrender of premises and cancellation of lease.
    2. Acceptance of key by lessor, and renting of building to another tenant, does not constitute surrender.
    First Publication of this Opinion
    Attorneys — Roy Warren Roof and H. D. Lease, Kenton, for Burke, et; G. B. DeWitt, Dunkirk, and Stickle & Cessna, Kenton, for Pfefferle.
   WARDEN, J.

This was a suit to collect a balance due as rent on premises which had been leased for a period of one year. Lessee occupied the building for a period of five months, and then surrendered it. It is claimed they surrendered under orders issued by the Department of Workshops and Buildings of the Industrial Commission of Ohio, and that lessor acquisced in such surrender. The Court of Common Pleas rendered a judgment in favor of the lessor, in a directed verdict. On error the Court of Appeals affirmed the judgment of the Common Pleas and found as follows:—

The rights of the parties depend entirely upon the lease under which the premises were being: occupied. The lease provides, that the building on the premises was to be used as an automobile display and sales room.

The evidence tended to prove that the several orders made by the Department of Workshops and Buildings of the Industrial Commission, were not based upon any objection to the use of the building for the purpose, but only against the storage in said building, of more than two automobiles with gasoline therein, and therefore any evidence based on the orders of the department, did not tend to prove the claim of the defendants.

It is urged that the court erred in directing the jury to return a verdict for plaintiff because there was some evidence tending to prove that defendants had surrendered possession of the premises, and that plaintiff accepted the surrender and took possession.

If this is true, the judgment is erroneous and prejudicial, but in Bumiller v. Walker, 95 OS. 344, it is held as follows: — •

“An acceptance by the landlord of the key to the premises, his advertising for a new tenant and renting the premises to another upon its vacation by the old tenant, under the facts stated, are not sufficient to constitute a surrender.

Judgment affiirmed.

(Before Judges Warden, Crow and Hughes.)  