113 N.J.L. 438, 174 A. 693 (E. & A. 1934)
The complaint alleged that the plaintiff leased the premises to the defendant under a written lease for one year from October 1, 1927, with rent payable monthly in advance.1 The defendant occupied the premises without any further lease and paid the rent until September 1930 before vacating on October 1, 1930, after which the premises remained vacant and the plaintiff sued for unpaid rent.2
The defendant's answer set up two defenses.3 The first stated that the plaintiff refused to accept a proposed tenant and minimize the damages but permitted the premises to become vacant.4 The second stated that the defendant surrendered the premises to the plaintiff prior to October 1, 1930, and the plaintiff agreed to surrender and accepted the premises, relieving the defendant of further liability.5
The plaintiff moved to strike the answer as frivolous and sham, and both sides submitted affidavits.6 Justice Bodine struck out the answer and ordered final judgment for the plaintiff.7 The defendant appealed from the summary judgment.8
The complaint and affidavits showed without dispute that the defendant held over and paid rent, becoming a tenant from year to year without giving notice to terminate. The affidavits showed that the landlord told the tenant shortly before vacating that he was unwilling to relinquish his rights as landlord and that the notice was insufficient. The landlord received the key after the tenant vacated and made unsuccessful efforts to rent the property without using it for his own purposes.
Whether the defense that the plaintiff refused to accept a proposed tenant and minimize the damages but permitted the premises to become vacant was properly stricken out as frivolous?9
A landlord is not bound to seek a tenant or to rent the premises to minimize the damages of the holdover tenant who had become a tenant from year to year and who moved out without giving the requisite notice of termination of the tenancy, especially where the lease prohibited assignment, letting, or underletting without the written consent of the landlord.10
Yes. The complaint and affidavits show without dispute that the tenant by holding over and paying rent reserved in the lease became a tenant from year to year.11 The original lease provided that the tenant would not assign, let or underlet the demised premises without the written consent of the landlord.12 The assertion that the plaintiff refused to rent the premises to a prospective tenant is therefore immaterial because no such consent of the landlord appears.13
The defense was properly stricken out as frivolous.14
Whether the defense that the defendant surrendered the premises to the plaintiff prior to October 1st, 1930, and the plaintiff agreed to surrender and accepted the premises was properly stricken out as sham?15
A surrender by act and operation of law arises only when the minds of the parties to a lease concur in the common intent of relinquishing the relation of landlord and tenant. They must execute that intent by acts tantamount to a stipulation to put an end thereto.16
Yes. The affidavits fail to disclose that the minds of the parties concurred in a common intent of relinquishing the relation of landlord and tenant.17 They show without dispute that the landlord told the tenant shortly before the tenant vacated that he was unwilling to relinquish his rights as landlord.18 The landlord also pointed out that the pretended notice given him was insufficient in law.19
The mere receipt of the key shortly after the tenant had vacated did not constitute an acceptance of surrender.20 The landlord's unsuccessful endeavor thereafter to rent the property did not constitute an acceptance of surrender.21 This is because the landlord made no use of the property for his own purposes inconsistent with the claim of continued relationship of landlord and tenant.22
The defense was properly stricken out as sham.23