The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-02-03

mits so much or the Judgment.
OPINION OF THE COURT BY FREAR. ].
Exceptions from the Circuit Court,
Fifth Circuit, which rendered judg
ment for the plaintiff for S11O, the
whole amount claimed, being two
years rent under lease.
The Court, jury being waived,
found the following facts which are
fully supported by the evidences:
I'm March, 1891, plaintiff leased to
defendants certain piece Of land at
Hanapepe, Waimea, Kauai, for
term of five years from March 16,
1891, ct rental of $50 for the first
year and $50 per year thereafter;
fifty dollars rent for the first year
was paid by defendants to the plain
tiff; the defendants entered into pos
session and built a store and two
months later dispute arose between
Messrs. Gay & Robinson and the
plaintiff, they claiming title to the
premises leased and in consequence
of threats by them the plaintiff went
to defendants and informed them of
the threats of Robinson and returned
the $50 to defendants to retain until
the question of title of the land was
settled. The defendants held posses
sion OF the land and premises for
eighteen months when they left and
went on to the land of Gay & Robin
son. Before the defendants left, the
plaintiff went to defendants and de-
manded the rent and they refused to
pay. Thereupon plaintiff informed
the defendants that he would dis
train. 4 few days later plaintiff
again went to defendants and found
that they were removing their goods
and taking the store away. The de-
PENDANTS returned the lease to plain
tiff; no cancellation or surrender was
made In writing"
Defendants contend that the lease
was surrendered,- NOT by agreement
of the parties, for that is required by
the statute of frauds to be In writing,
but by operation of law. Oar stat
ute does not In terms except surren-
ders ''by operation of law" as does
the English statute, but assuming
what seems to be the view of some
of the courts of the United States
ours, that such exception Is i'm
piled, we do not think that the facts
are sufficient to constitute such
surrender. The essential feature
of a surrender by operation of
law, aside from the mutual con-
sent of the parties, IS a change of
possession inconsistent with the con-
tinued existence of the lease, as
where the tenant accepts from his
landlord new lease inconsistent
with the old, or where the landlord
accepts a new tenant with the con
sent of the old, or where by mutual
consent the tenant yields and the
landlord resumes possession. The
Circuit Court found that there was
neither mutual assent to the relin-
quishment of the relation Of landlord
and tenant nor change of posses
sion, and these findings are not con
trary to the evidence.
Nor do the facts show, as con-
tended, an eviction of the defendants
by Gay & Robinson, which would
Justify the defendants In attornipg
to them. No actual eviction Is shown,
nor even imminent danger of an
eviction. The evidence shows that
the defendants paid the rent to Gay
& Robinson, but how they came to
do so does not appear. A tenant
may not for light reasons deny the
title of his landlord and, without
first delivering possession to him,
attorn to another.
1t does not appear that the plain
tiff acquiesced in the attornment.
There Is nothing to show that he
authorized the defendants to attorn
to others and, although one of the
defendants testified that the plain
tiff knows we pay rent to Gay &
Robinson" it does not appear when
the plaintiff first became aware of
this, whether before or after the rent
was paid, or before or after this