Townsend v. Albers — 3 E.D. Smith 560

Majority

p. 560

Samuel P. Townsend v. Hermann Albers.

Headnote

The mere acceptance by the landlord, of the key of the demised premises, from á tenant who quits possession during the term, is not an acceptance of the surrender, where the landlord states that he receives the key but not the premises.

Action for rent due by the terms of a lease. The tenant, during the demised term, abandoned the premises, and delivered the key to the landlord’s agent, who accepted it, remarking, “I will receive the key, but not the premises.” The defendant claimed that accepting the key was an acceptance of his surrender of the premises, and operated to release him from his covenant to pay rent. The Fourth District Court gave judgment for the plaintiff. The defendant appealed.

Jacob I. Radcliffe and David P. Whedon, for the defendant.

William H. Meeks, for the plaintiff.

There was no testimony showing that the landlord consented to release the defendant and accept a surrender of the premises. The only evidence upon the point was, that the key was delivered to the plaintiff’s agent, who accepted it, but declared at the same time, that he would receive the key but not the premises. Judgment must be affirmed.

Judgment affirmed.