This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Nickells v. Atherstone, 10 Q. B. 944.
2 Bees v. Williams, 2 Crorap. M. & R. 581.
3 Reeve v. Bird, 1 Cromp. M. & R. 31.
4 Schieffelin v. Carpenter, 15 Wend. (N. Y.) 400. Where the assignee of a term, under a verbal agreement to take the term and pay for certain repairs, enters, and occupies, it seems he may defend payment for the repairs, that remaining executory. Buttemere v. Hayes, 5 Mees. & W. 456.
5 Taylor v. Chapman, Peake, Add. Cas. 19; Thomson v. Wilson, 2 Stark. 379; Lammott v. Gist, 2 Harr. & G. (Md.) 433.
1 Mollett v. Brayne, 2 Camp. 103.
2 Stone v. Whiting, 2 Stark. 235; Johnstone v. Hudlestone, 4 Barn. & C. 922.
3 Walker v. Richardson, 2 Mees. & W. 882. So in Michigan: Logan v. Anderson, 2 Doug. 101. But if there be a covenant by the lessee not to assign, a parol waiver by the lessor and lessee's assigning his term does not discharge him from the other covenants in the lease, but he is still liable for breach of them committed by the assignee. Jackson v. Brown-son, 7 Johns. (N. Y.) 227.
4 Grimman v. Legge, 8 Barn. & C. 324; Lamar v. McNamee, 10 Gill & J. (Md.) 116. But this is doubted in Morrison v. Chadwick, 7 C. B. 266.
5 Dodd v. Acklom, 6 Mann. & G. 672. This case has since been discussed, but not overruled, in Furnivall v. Grove, 8 C. B. n. s. 496.
1 Phene v. Popplewell, 12 C. B. n. s. 334. For facts that were held evidence of such a surrender, and therefore wrongfully kept from the jury, see Pratt v. Richards Jewelry Co., 69 Pa. St. 53; Auer v. Penn, 92 Pa. St. 444. And see Amory v. Kannoffsky, 117 Mass. 351.
2 McKinney v. Reader, 7 Watts, 123.
3 Phipps v. Sculthorpe, 1 Barn. & Ald. 50. 4 Matthews v. Sawell, 8 Taunt. 270.
§ 57. The acts of landlord or tenant which will estop him to deny a surrender being, as we have seen, such acts as are plainly irreconcilable with an intention to continue the relation of landlord and tenant, it will be clear that a landlord may do such acts as are necessary and reasonable for the preservation of his property during the vacation of it by a tenant, without producing such a consequence. Thus advertising premises to let or sell, the tenant having quitted, does not estop the landlord to hold him for the rent until a new tenant be put in.5 But, on the other hand, a mere protestation against a surrender will not prevail against such acts as must be held to work one, or the party not in fault be left helpless indefinitely; where a tenant quitted the premises and absconded with his family and effects, and upon the landlord resuming possession, the former tenant undertook to sustain an action against him from his retreat, it was held that he had surrendered his term by abandonment.1
1 Walker v. Richardson, 2 Mees. & W. 882.
2 Woodcock v. Nuth, 8 Bing. 170. 3 Copeland v. Watts, 1 Stark. 95.
4 Smith v. Niver, 2 Barb. (N. Y.) 180; Bailey v. Delaplaine, 1 Sandf. (N. Y.) 5. See Wilson v. Lester, 64 Barb. (N. Y.) 431; Vandekar v. Reeves, 40 Hun (N. Y.) 430.
5 Redpath v. Roberts, 3 Esp. 225. It will be observed that in Reeve v. Bird, 1 Cromp. M. & R. 31, there was an actual admission of a new tenant to part of the premises, besides the advertising to let or sell.
1 McKinney v. Reader, 7 Watts (Pa.) 123.