#### Truman E. Stevens v. George E. Pantlind and John A. B. Meade.

*Landlord and tenant*— Surrender *of premises*— Directing *verdict.*

The court is held to have erred in finding as matter of law, upon plaintiff’s testimony, that the defendants had surrendered possession of a mill leased of the plaintiff prior, to its destruction by fire, and that its care had been assumed by the plaintiff; plaintiff not having rested liis case, and not claiming to be entitled to recover upon the case then presented, and having advanced no theory inconsistent with the case set forth in his declaration.

Error to Osceola. • (Judkins, J.)

Argued July 1 and 2, 1891.

Decided July 28, 1891.

*Assumpsit.*Plaintiff brings error.

Reversed.

The facts are stated in the opinion.

*Charles A. Withey (C. H. Rose,*of counsel), for appellant.

*Blair, Kingsley é Kleinhans,*for defendants.

McGrath, J.

On the 14th day of May, 1888, plaintiff leased to defendants—

> “His entire saw-mill, together with all tools and supplies on hand, also his team of horses, one set of trucks, one wagon, and use of barn now occupied by him, for so long a time as it shall take said second parties [defendants] to cut what logs they have in the first party’s mill-yard, and lots adjoining; together with the right of ingress and egress, along and upon all and every part of said premises, for the purpose of doing said work. Said first party also agrees to work in the mill under direction *477of second parties, or their agent, at the rate of two dollars per day, so long as his work shall prove satisfactory to said second parties, but no longer.”

In consideration of said lease and agreement, defendants agreed to pay plaintiff the sum of $500, and also to pay him at the rate of $2 per day for all the time that he should work in said mill. The lease contained these further provisions: •

> “The parties of the second part further agree that, as soon as the job is completed, they will return the above property, with the exception of the supplies, in as good order and condition as it was when they received it, excepting natural wear and tear and damage by fire or the elements.

> “ It is further agreed that, should the mill be destroyed by fire, this lease and contract shall terminate and become void. The parties of the second part agree to keep a night watchman, and exercise due care and diligence to protect said property from fire, the same as though the property was their own.”

Defendants operated the mill under this lease from May 14 until July 11, 1888, during all of which time plaintiff was employed as sawyer and filer in the mill, and lived upon the same premises within about 300 feet of the mill. It appears that .when defendants took possession there were no accumulations'of sawdust or slabs about the mill; that a box had been constructed on the south side of the mill to collect the surplus rubbish, and was so arranged that a wagon could be backed under the box to draw the surplus away, as plaintiff did when "he ran the mill; that after defendants took possession the box was torn down in some way, and from that day on they allowed the sawdust to accumulate in great quantities around the mill, and threw the ashes from under the grate into the sawdust; that in the latter part of June a *478fire had occurred in the mill; that the plaintiff had called the superintendent’s attention to the danger of allowing the sawdust and slabs to accumulate, and he had promised to draw them away; that fire would smoulder in a pile of sawdust for weeks, and perhaps months; that the mill was shut down from June 30 to July 9; that before the mill was shut down plaintiff asked the superintendent if he intended keeping a watchman there while the mill was shut down, and he said it was not necessary, whereupon plaintiff told him it was dangerous to have the property in that condition, and plaintiff said, “Under the terms of the lease, the company is good if the thing burns down;” that on July 11 defendants got through cutting logs, laid off their men, and paid plaintiff for his labor, but the balance of the rent was not paid until July 23; that the sawdust and slabs had accumulated in great quantities around the mill. Plaintiff testified as follows:

> “Mr. White did the paying. He came down to the mill on July 11, and we went down into the engine-room and around on the south-west- side of the end of the mill, the corner of the fire-room, and got to speaking about the sawdust there, and the rubbish; and he asked me what I would take to call the mill in as good condition as it was when they received it; and I told him that I would take $50, and Mr. White‘said, ‘That is too much.’ ‘Very well,’ I said, ‘I don’t care for the job at all; all that I ask of you is to put the mill in as good condition as when you received it; as far as sawdust and rubbish and everything of that sort is concerned.’ * * * I says to Mr. White, ‘I supposed you were left here to settle up with me, and turn this property over.’ He says: ‘I have nothing to do with it. I have no right to do it. Mr. Watson intended to be here to-dav, but he was sick, but he will be here in a day or two, and he will fix the matter up, and turn the property over to you in good shape.’ In the mean time he expected some local parties there to draw away some of the edgings and slabs that *479was left there. He said they wanted them for wood. ■* * * He spoke about the team. He wanted I should take the team. He said they were out of feed, and had no hay, and it would be an unnecessary expense for them to go and buy hay, as they had nothing to do for it. He said Mr. Watson would be up in a day or two, and he wanted me to take the team and take care of it, and I said, 'I don't want to accept the team so it will in any way hold me in accordance with that lease, as accepting the mill back or anything of that sort.' He said that wouldn’t make any difference; that would be all right; there wouldn't be any trouble about that, anyway. Mr. Watson would be up in a day or two, and everything would be settled up satisfactory. * * * The next morning, July 12, I had a conversation with him at the hotel. There was an unsettled account about some wood that they had burned up, that I had forgotten. He said he would have it arranged, and I would get it when they sent me the amount due me on the mill. He asked me then if I thought that $25 was not enough for ■cleaning up the property, and I says, 'No, sir, it is not,’ and that was all that was said in regard to it at that time, and he took the train and went south. The watchman was dismissed on the morning of the 12th. I did not go near the mill on the next day, or pay any attention to it. They at that time had a lot of lumber in the mill-yard. The mill burned down on the morning of the 13th of July."

At this point, counsel for plaintiff was interrupted by the court, and asked to explain how he expected to recover on this evidence. Plaintiff's counsel then made the following offer:

> " We offer to prove that at the time of the fire there was yet in the mill itself, and upon the rollways in and ■about the operating portion of the mill, a considerable quantity of the regular cut of lumber belonging to the •defendants, and not yet by them removed from the mill. We also offer to prove that there was from 2,000 and upwards of feet of logs yet in the yard adjacent to the mill, uncut, good merchantable logs."

Counsel further stated that he was prepared to bring *480the fire home to defendants, and to show why plaintiff did not make a claim for damages at the time that he received the balance of the 8500, on July 23; and that he was also prepared to show that there was fire in the sawdust on July 11, and that the fire which destroyed the mill originated in the rubbish. The court refused to receive the testimony, holding that the mill had been turned over to plaintiff on July 11, and that the obligation imposed upon defendants, by the lease, to maintain a watchman and care for the mill ceased at that time, the premises having been surrendered to plaintiff.

The court erred in finding, as a matter of law, that the defendants had surrendered possession, and that plaintiff had assumed the care of the mill. Plaintiff had not rested his case, did not claim to be entitled to recover upon the case thus presented, and had advanced no theory inconsistent with the case set forth in his declaration. His contention was that defendants were still in possession when the fire occurred; that White had no authority to surrender possession; that plaintiff had refused to accept possession of a part of the premises.

The judgment is reversed, and a new trial ordered, with costs.

The other Justices concurred.