The Hawaiian gazette., 1894-02-06

ulIS 81 VI tlit
OPINION OF THE COURT BY TREAR.
Exceptions from the Circuit Court
Fifth Circuit, which rendered judg
ment for thu plaintiff for S110, the
whole amount claimed, being TIVE
years rent under Lease.
The Court, jury being waived
found the follo"ing facts which are
fully supported by the evidence
I'm March, 1891, plaintiff leased tc
defendants certain piece of land al
Hanapepe, Wsimea, Kauai, for q
term Of five years from March 16
1891, at 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 a 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
siou 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-
mauded the rent and they refused to
pay. Thereupon plaintiff informed
the defendants that be would dis
train. A 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 Ia writing,
but by operation of law. OUr stat
ute does not in terms except surren-
ders ''by operation of law" as does
the English statute, but assuming
what seems 10 be the view of some
of the courts of the United States
in constituting statutes similar to
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 d surrender by operation OF
law, aside from the mu ual con
sent of the parties, Is IA change of
possession inconsistent with the con
tinued existence Of the lease, as
where the tenant accepts from his
landlord a new lease inconsistent
with the old, or where the landlord
accepts new tenant with the COL
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 rein
euisbment Of tue relation Of lzudlord
and icuant nor change vi p1-ses-
sion, aad these findings are not Goa
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 attorDing
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 hin,
attorn to another
1t does not appear that the plain
tiff acquiesced in the attornment.
There Is nothing TO show that be
authorized the defendants to attOrn
to others and, although one of the
defendants testified that the plain
tiff "kuows 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
action was brought, nor would mere
knowledge of the fact that rent was
paid be sufficient to show acquies-
cence in its payment.
There is but one other point which
need be consi Tered. The rent for
the first year was paid. The money
WIS altei warus returned. It is no
longer payable a. rent; whether pay
able a. money had and received, or
upon any other promise express rr
is not before the Court. 1t |
cannot be recovered in this action,
wbich i, brought upon the lease.
If the plaiuuff viii remit $50, the |
amount awarded for the first years |
rent, the judgment for the residue
will be affirmed, otherwise new trial
will be ordered.
A. Rosa for plaintiff; A. S. Hart
we'll for defendants.
Honolulu, January "a, 1884.