These examples lead to the supposition that the mere acts affecting surrender are not conclusive and that their effect may be controlled by the intent with which they were done. For the purpose of examining this point of view the cases usually discussed under surrender in law may be arranged in the following classes:

(a) Where the only evidence of surrender is oral. E.g., the landlord and tenant orally agree upon immediate surrender, but the tenant remains in possession as before. The landlord later contends that such continued possession is without right, or the tenant offers evidence of such agreement as a defense in an action for rent which is alleged to have accrued subsequently.

(b) Where the result of the conduct of the parties, independently of words, is inconsistent with the continuation of the original tenancy. E.g., the tenant accepts a new tenancy in the same premises to take effect in derogation of the former tenancy, or returns possession of the premises to the landlord."

(c) Where the only evidence concerns acts which are irregular but conceivably consistent with either the continued existence of the tenancy or its termination. E.g., the tenant sends the key of the premises to the landlord whose servants thereafter are seen making repairs on the premises.'

10

(d) Where the acts, independently of words, fall within class (c) above, but where the provable words qualifying such acts establish whether there was or was not a mutual intention to end the tenancy. E.g., the landlord sends men to do repair work in the building, after a conversation in which the tenant expressed

surrender in law. In re Mullings Clothing Co., 238 Fed. 58 (2nd. Circ., 1916); Dodd v. Acklom, 6 M. & G. 672 (1843). See 2 TIFFANY, REAL PROPERTY, 2 ed., 1585-1586. But if the intent to accept surrender is not present, accepting the key does not bring about a surrender. Reeves v. McComeskey, 168 Pa. St. 571, 32 Atl. 96 (1895). See Brown v. Linn Woolen Co., 114 Me. 266, 95 Atl. 1037 (1915), where it was held that a surrender in law does not follow acceptance of a new lease if the acts of the parties rebut the idea of surrender.

8 See Duncan v. Moloney, 115 Ill. App. 522 (1904); Fisher v. Nelke, 114 Me. 112, 95 Atl. 508 (1915); Kittle v. St. John, 7 Neb. 73 (1878); Wilson v. Lester, 64 Barb. (N. Y.) 431 (1873); Bailey v. Wells, 8 Wis. 141 (1859). 9 See notes 5, 6 and 7, supra.

10 Livermore v. Eddy's Adm'r, 33 Mo. 547 (1863). See Smith v. Hunt, 32 R. I. 326, 79 Atl. 826 (1911), and note thereto in 35 L. R. A. (N. S.) 1132.

a desire to surrender the tenancy and the landlord wrote cancelled" on the tenant's copy of the lease.11

(e) Where certain acts, independently of words, fall within class (c), but, instead of being explained or corroborated by words as in class (d), are entirely overcome and rebutted by inconsistent facts or acts. E.g., the tenant returns the lease to the landlord, but remains in possession, making no move to vacate, or leaves the premises in the hands of a sub-lessee who continues in possession.12

(f) Where the acts, independently of words, fall within either class (b) or class (c) above, and the intention to end the tenancy is established, but there appears, in addition to this, evidence that one of the parties did not agree to the termination of the contractual obligations created by the covenants in the lease. E.g., the tenant vacates premises and notifies the landlord that he will not pay any rent accruing thereafter; the landlord informs the tenant that he is not released from the obligation to pay rent but that the premises will be rented to another, if possible, for the purpose of reducing the liability. The landlord thereafter admits another tenant.13

The situation in class (a) above, is so susceptible to fraud, perjury, failure of memory, or misunderstanding, that we can well sympathize with the desire to make a written instrument the exclusive means of proof. Cases falling into this class are clearly within the Statute, and under it are required to be evidenced in writing. A purely verbal act is not such an "act" as the Statute contemplated.

Cases that fall into class (b) exemplify the saying, "Actions speak louder than words." Proof of words in such cases would be superfluous. For that reason evidence of words is usually ignored as surplusage or excluded as immaterial. It would seem

11 Brewer v. Nat. Union Bldg. Ass'n, 166 Ill. 221, 46 N. E. 752 (1897). See Sessinghaus v. Knock, 127 Mo. App. 300, 105 S. W. 283 (1907); Lafferty v. Hawes, 63 Minn. 13, 65 N. W. 87 (1895).

12 McKenzie v. Lexington, 4 Dana (Ky.) 130 (1836). Cf. Brewer v. Nat. Union Bldg. Ass'n, supra, note 11; Duncan v. Moloney, 115 Ill. App. 522, 525 (1904); Beidler v. Fish, 14 Ill. App. 29, 36 (1883); Brown v. Linn Woolen Co., supra, note 7; Magennis v. MacCullough, Gilb. Cas. in Eq. 235 (circa 1720). See facts in Lyon v. Reed, 13 M. & W. 285 (1844).

13 Auer v. Penn, 99 Pa. St. 370 (1882). See note 53, infra.

that Lyon v. Reed, discussed later, would restrict surrenders in law to this class.

In the cases of class (c) the total absence of provable words must be emphasized. The fact that the acts lack convincing effect, as postulated, would always militate against the party seeking to upset the status quo, so that the tenancy would continue. The weakness of this evidence, growing out of its assumed ambiguity, would tend to restrain parties from attempting actions or defenses resting exclusively thereon, and such cases would be so rare that they would give legislators and jurists small concern. Moreover, even the evidence showing the acts might be excluded, or a non-suit or a directed verdict granted, because of the failure of the evidence to prove whether there was a mutual intent to effect a surrender. Situations of this kind must have been much more common in the days of the disqualification of parties as witnesses than they are today.

Class (d) includes most of the cases that offer great difficulties because of the present state of the authorities. It might be argued that cases of this kind should be treated as involving express surrenders, for the reason that the words qualifying the acts are the evidence upon which the case must finally turn. Since these words are subject to all the objections directed at those which fall under class (a), similar treatment of them would not necessarily be illogical. This would ignore, however, the fact that we have, in addition to the words, corroborating circumstances, i.e., acts which, while inconclusive standing alone, may go far toward establishing or clarifying the oral acts of the parties in showing agreement upon a surrender. Such treatment would be somewhat parallel with the results reached under the familiar seventeenth section of the Statute of Frauds, where it is expressly provided that a part performance, i.e., a corroborating circumstance, does away with the requirement of a writing. In this kind of case some facts will, of course, offer stronger corroboration than others of an expressed intent to surrender.

The principal difficulty here is in distinguishing the cases of class (d) from those of class (b). The usefulness of a sharp distinction between classes (b) and (d) may be doubted, since in each case the court might conclude that a surrender was accomplished. In some cases of class (b), however, a court may

properly exclude all oral evidence of intent. If the case fell within class (d), such sweeping exclusion would, according to the views developed below, be an error. It would seem, therefore, that where it is necessary to make a distinction the test would have to be sufficiently severe to exclude all cases of class (b), and might be stated thus: Where the acts of the parties are so inconsistent with the preëxisting tenancy that no oral agreement could so explain them as logically to leave such tenancy still existing, the case falls into class (b) and is a "surrender by act and operation of law," because the evidence shows that necessarily to have been the intent of the parties. The test could not be less extreme and still preserve the distinction between the two classes mentioned, since class (d) includes all cases where ambiguous acts are explainable by words of the parties showing intent.

The cases of class (e) consist of those which would fall within class (d) if it were not for the fact that the corroborating acts of the parties are made unintelligible or are offset by other inconsistent acts, or acts having an opposite probative effect. As indicated by the example stated above, the act of handing back a lease to the landlord, which otherwise might be looked upon as a symbolical relinquishment of possession, may lose its possible force in such direction by a showing that the possession was in a sub-lessee. The only remaining evidence then would be the words, and it may be conceded that without the support of corroborating acts these fall within the Statute and require proof in writing.11

14

Class (f) includes cases which may readily be confused with those properly falling into class (d) above. In the case of the tenant who owed only such services as arose out of the tenure between him and the reversioner, or who owed no services, the surrender terminating the tenancy left nothing further to be discussed. But the vastly greater number of tenancies of later years have been such that the tenant owed certain contractual obligations to his landlord which may exist independently of tenure, and the surrender concluding the tenure which is inci

14 This would lead to the same result reached in Lyon v. Reed, supra, note 1, and would not be open to the criticism offered hereinafter in the discussion of that case.

dent to the lease may or may not have been mutually intended to operate also as a rescission of the covenants to pay rent, and so forth. It needs only to be stated to be recognized that the contractual obligations in a lease may exist before tenure starts or indeed if it never starts; 15 they may also bind the parties to a lease after the relationship of landlord and tenant has been ended by assignment by one of the parties.16 In a case where the lessee vacates during the term and the landlord, after notifying him of refusal to release him, lets the premises to another, the tenancy of the first lessee seems necessarily to be concluded, but it does not seem unavoidably to follow that this should release him from liability for damages for breach of covenant whether the damages accrued before or after his refusal to complete performance.1

17

The cases falling into class (a), supra, involve the rules of surrender in fact which are fairly definite and well settled. The cases of class (b) would ordinarily involve estoppel in pais, and even under Lyon v. Reed, therefore, would result in surrender in law. Whether that should be the result "in spite of the intention of the parties" is discussed later. In the four remaining classes, the dual elements, mutual intent and corroborating facts, are emphasized, and an effort is made below to ascertain what general rule can be derived therefrom. Can it be correctly said that where one of these elements is lacking no surrender in law is accomplished, but that where they coëxist and support each other there may be such surrender? If this can be answered in the affirmative, the element of intent is of primary importance.18 It seems that the significance of the history of surrender before the Statute of Frauds, which was relied on and given

15 Coy v. Downie, 14 Fla. 544 (1874); Brown v. Cairns, 107 Ia. 727, 77 N. W. 478 (1898); McGlynn v. Brock, 111 Mass. 219 (1872); McMurphy v. Minot, 4 N. H. 251 (1827); Bussman v. Ganster, 72 Pa. St. 285 (1872). See infra, note 53. See also WILLISTON, CONTRACTS, § 1405.

16 Wall v. Hinds, 4 Gray (Mass.) 256 (1855). See TIFFANY, LANDLORD AND TENANT, 960, 961, 1328; WILLISTON, CONTRACTS, § 411, note.

17 See note 53, infra.

18 The frequent use of such words as "intent," "consent," etc., as being shown by such acts furnishes the basis for a belief that the intent does control, the act being a means of proof which is difficult to falsify. An effort is made to demonstrate this in the following.