opinion of the court, it being stated that the contract in question is within the act regarding contracts and assumptions. c. Unexpired term less than that required to be in writing. If the unexpired term of a written lease is less than that required by statute to be in writing, it may be surrendered by oral agreement. Smith v. Devlin (1861) 23 N. Y. 363; Sherman v. Engel (1896) 18 Misc. 484, 41 N. Y. Supp. 959; Garrick Theater Co. v. Gimbel Bros. (1914) 158 Wis. 649, 149 N. W. 385. In Smith v. Devlin (N. Y.) supra, it was held that a lease for three years, which has one year to run, might be surrendered by parol under a statute providing that no estate in lands, other than leases for a term not exceeding one year, shall be surrendered except by operation of law or by agreement in writing. It is not clear from the opinion just what was done in the way of a surrender. It is stated in the defense "that the premises were surrendered by a parol agreement to pay $100, and the delivering up of the keys of the house and a tender of the $100," and that the lessor actually accepted "the surrender upon the agreement to discharge the lease for $100, which was so tendered." The lease was regarded, however, as a lease for only a year, and it is on this theory that the decision is based, and not on the actual surrender of the premises. III. Effect of delivery of possession. Assuming that an oral agreement of surrender of a lease is invalid, it does not follow that, if a delivering up of possession actually takes place in pursuance thereto, a surrender does not result. A surrender by operation of law is recognized in the statutes regulating this matter, as well as in the decisions under statutes not expressly regulating the surrender. The fact that the lease has more than a year to run does not prevent a surrender by operation of law. Hurley v. Sehring (1891) 62 Hun, 621, 43 N. Y. S. R. 240, 17 N. Y. Supp. 7. A surrender of the possession of the premises by the lessee and an acceptance thereof by the lessor, in pursuance of a verbal agreement, is held to be a surrender by operation of law. Maine. Hesseltine v. Seavey (1839) 16 Me. 212; McCann v. Bass (1918) 117 Me. 548, 105 Atl. 130. - Maryland. Lamar v. McNamee (1838) 10 Gill. & J. (Md.) 116, 32 Am. Dec. 152. Massachusetts.-McGlynn v. Brock (1872) 111 Mass. 219; Hanham v. Sherman (1873) 114 Mass. 19. Minnesota.-Millis v. Ellis (1909) 109 Minn. 81, 122 N. W. 1119; Brackett Co. v. Lofgren (1918) 140 Minn. 52, L.R.A.1918F, 998, 167 N. W. 274. Missouri. Churchill v. Lammers (1894) 60 Mo. App. 244; Tobener v. Miller (1896) 68 Mo. App. 569. Nebraska. Wheeler v. Walden (1885) 17 Neb. 122, 22 N. W. 346; Buffalo County Nat. Bank v. Hanson (1892) 34 Neb. 455, 51 N. W. 1035; Bowman v. Wright (1902) 65 Neb. 661, 91 N. W. 580, 92 N. W. 580. New Jersey. Miller v. Dennis (1902) 68 N. J. L. 320, 53 Atl. 394. New York.-Kelly v. Noxon (1892) 64 Hun, 281, 18 N. Y. Supp. 909; Baldwin v. Cohen (1909) 132 App. Div. 87, 116 N. Y. Supp. 510; Tallman v. Earle (1891) 37 N. Y. S. R. 271, 13 N. Y. Supp. 805. Pennsylvania.-Auer v. Penn (1880) 92 Pa. 444. Utah.-Aaron v. Holmes (1908) 35 Utah, 49, 99 Pac. 450. Washington.-Hart v. Pratt (1898) 19 Wash. 560, 53 Pac. 711. England. Gore v. Wright (1838) 8 Ad. & El. 118, 112 Eng. Reprint, 780, 2 Jur. 840, 3 Nev. & P. 243, 1 W. W. & H. 266, 7 L. J. Q. B. N. S. 147; Whitehead v. Clifford (1814) 5 Taunt. 518, 128 Eng. Reprint, 482, 15 Revised Rep. 579. Canada.-Doe ex dem. Burr v. Denison (1882) 8 U. C. Q. B. 185. In McGlynn v. Brock (1872) 111 Mass. 219, where the lessee, in action for rent, sought to show that he had surrendered the premises in accordance with an oral agreement, entered into at the time of the lease, that he was to have this privilege, it was held that the oral agreement was ineffec tive as a modification of the written lease, but that the oral agreement might be proven in order to throw light upon and give force to the evidence upon which the lessee relied to show that there had been a surrender of the lease, and an acceptance thereof, or an acquiescence therein, by the lessor. Where the tenant has surrendered the premises, and the lessor has accepted the surrender and placed another tenant in possession, no rent can be recovered of the lessee. Hesseltine v. Seavey (Me.) supra. The same rule is applied under statutes expressly declaring invalid a surrender except in writing, but recognizing a surrender by operation of law. It is held that if the oral agreement is executed by a delivery of possession by the tenant, and an acceptance of such possession by the landlord, the lease is terminated; such facts are held to amount to a surrender of the lease by operation of law. Lamar v. McNamee (1838) 10 Gill & J. (Md.) 116, 32 Am. Dec. 152. In Miller v. Dennis (1902) 68 N. J. L. 320, 53 Atl. 394, it is stated that when the minds of parties to a lease concur in the common intent of relinquishing the relation of landlord and tenant, and execute this intent by acts which are tantamount to a stipulation to put an end thereto, there at once arises a surrender by act and operation of law, and "of course the terms of the surrender may be settled in advance by. parol." A lessor who has accepted possession of the leased premises from a tenant who was holding from year to year in pursuance of a parol agreement cannot recover rent of the lessee for a time subsequent to lessor's resuming possession. Whitehead V. Clifford (1814) 5 Taunt. 518, 128 Eng. Reprint, 482, 15 Revised Rep. 579. In Gore v. Wright (1838) 8 Ad. & El. 118, 112 Eng. Reprint, 780, 2 Jur. 840, 3 Nev. & P. 243, 1 W. W. & H. 266, 7 L. J. Q. B. N. S. 147, where, upon a suit by the lessor to recover rent, the lessee set up in defense an oral agreement to surrender the premises, the surrender in accordance therewith, 4 A.L.R.-43. and acceptance by the lessor, the court, in denying recovery, states that the plea does not set up a surrender as a defense, but simply a contract by the landlord to excuse payment of rent in consideration of the lessee giving up possession. It is stated in Baldwin v. Cohen (1909) 132 App. Div. 87, 116 N. Y. Supp. 510, that a statutory requirement that a surrender of a lease for a term of more than one year shall be in writing does not apply, where there is an actual surrender and acceptance. See Wheeler v. Walden, and Buffalo County Nat. Bank v. Hanson (Neb.) supra. The facts stated in Tallman v. Earle (1891) 37 N. Y. S. R. 271, 13 N. Y. Supp. 805, are stated to have amounted to a surrender of the lease by operation of law. Whether there has been an accepted contract of surrender is a question depending upon the facts of the individual case. In Kelly v. Noxon (1892) 64 Hun, 281, 18 N. Y. Supp. 909, there was held to be no accepted surrender, where the lessee of an office spoke to the lessor in regard to vacating, whereupon the lessor told him that if he would vacate at once the lessor could obtain another party to take the lease. Whereupon the lessee replied all right; that it was short notice, but he would see what he could do, and vacated within a day or two, and gave the keys to the lessor, nothing further being said or done, nor were the offices afterwards occupied by the lessee. In holding that this was not an accepted surrender, the court states that as no communication was made to the lessor subsequent to this undecided answer, until the keys were delivered, and as there was no evidence of an agreement to accept any surrender at the time of the delivery of the keys referred to, there was no contract of surrender. Some cases have applied the principles of estoppel, and denied the landlord relief, where he has accepted the surrender in pursuance of an oral agreement. Millis v. Ellis (1909) 109 Minn. 81, 122 N. W. 1119; Churchill v. Lammers (1894) 60 Mo. App. 244, see supra; Tobener v. Miller (1896) 68 Mo. App. 569, see supra; Auer v. Penn (1880) 92 Pa. 444. In Churchill v. Lammers (1894) 60 Mo. App. 244, a lessor was held to be estopped where, in pursuance of the oral agreement that the lessee might surrender the premises, a surrender was made, and the lessee rented another building and became liable for the rent. A landlord has been held estopped where he has failed to repudiate a surrender in pursuance of an oral agreement. Millis v. Ellis (1909) 109 Minn. 81, 122 N. W. 1119. In this case the lessor and lessee had entered into a verbal contract by which it was agreed that the premises might be surrendered upon thirty days' notice. The lessee surrendered the premises in accordance with this notice, and sent the key to the lessor; the lessor admitted that he received the key, and that he placed the same in the hands of a real estate agent, with authority to rent the premises. He did not notify the lessee that he refused to consent to the vacation of the premises and to the surrender of the lease, nor was there any evidence that he acquiesced in such vacation and surrender, except that he handed the key to the real estate agent with authority to rent the premises, and failed to protest, as above stated, until the action in question was commenced. The Minnesota court, discussing this question, states: "The court has found, and the evidence is sufficient to support the finding, that appellant had verbally agreed to release respondent and surrender the lease upon thirty days' notice. Although this parol agreement was not sufficient to accomplish a surrender or cancelation of the lease, it was competent evidence for the purpose of throwing light upon the subsequent conduct of the parties. On the 30th day of June appellant was notified by letter that respondent had acted in accordance with the verbal understanding, and, claiming to have the right to vacate the premises, had moved out and returned the key, having purchased a home of his own. In the absence of any oral agreement, appellant had the right to retain the key, and assume possession of and rent the premises. But it must have been apparent to appellant that respondent was relying upon the verbal contract and had carried its terms into effect. It therefore became incumbent upon appellant to at once repudiate the contract, and to notify respondent that he did not propose to stand by it. Resuming possession, and permitting respondent to purchase a house of his own and move out without protest, were facts sufficient to warrant the conclusion that appellant was proceeding, not by virtue of his rights under the terms of the lease, but in accordance with the verbal contract. In so doing he became a party to acts which, in justice to the other party, he ought not to repudiate." Upon the authority of Millis v. Ellis it was held in the subsequent Minnesota case of Brackett Co. v. Lofgren (1918) 140 Minn. 52, L.R.A.1918F, 998, 167 N. W. 274, that where the parties to a fiveyear lease in writing agree orally that it shall be terminated, and the lessee vacates and the lessor repossesses himself of the premises, the lease is effectually terminated. Likewise, the tenant has been held estopped from claiming rights under the lease. Aaron v. Holmes (1908) 35 Utah, 49, 99 Pac. 450; Doe ex dem. Burr v. Denison (1882) 8 U. C. Q. B. 185; Fenner v. Blake [1900] 1 Q. B. (Eng.) 426, 82 L. T. N. S. 149, 69 L. J. Q. B. N. S. 257, 48 Week. Rep. .392. In Doe ex dem. Burr v. Denison (1882) 8 U. C. Q. B. 185, a tenant, who, in compromise of an action against him for breach of covenant, agreed to surrender the term, and in accord with the agreement delivered up the lease for cancelation and retired from all possession of the premises, part of which were leased to another as provided in the compromise agreement, was held thereafter estopped to claim the premises. A tenant who, being de sirous of surrendering his lease, is present when the lessor leases the premises to a third person, and who in pursuance of the agreement of the parties puts the third person into possession of the premises, will be held to have surrendered the premises and terminated the lease. Aaron V. Holmes (1908) 35 Utah, 49, 99 Pac. 450. Accordingly, the tenant was held to have no right of action against the landlord for entry upon the premises. In Fenner v. Blake (Eng.) supra, a tenant from year to year, whose tenancy was determinable by notice in March, but who had not given notice, made an oral agreement with his landlord in the previous December that the tenancy should be determined in the following June. On the strength of this agreement the landlord sold the premises and agreed to give possession in June. In an action to obtain possession, the tenant was held estopped to deny that his tenancy terminated in June. The acceptance of a new lease has been held to be a surrender by operation of law; in order that this may, amount to a surrender, however, the new lease must be a valid one. Ryan v. Kirchberg (1885) 17 Ill. App. 132; Schieffelin v. Carpenter (1836) 15 Wend. (N. Y.) 400; Fenner v. Blake (Eng.) supra. A parol agreement to terminate a lease under seal, and accept another as tenant, without an actual surrender, is not sufficient to terminate the lease, where the unexpired term is more than a year. Wilson v. Lester (1873) 64 Barb. (N. Y.) 431; Ettlinger v. Kruger (1911) 146 App. Div. 824, 131 N. Y. Supp. 436. The mere receipt of rent from the assignee does not have the effect of terminating the written lease. In Matthews v. Sawell (1818) 8 Taunt. 270, 129 Eng. Reprint, 387 (for facts of which, see supra), the court expressly denied the lessee relief because there was no person liable to the original lessor for the rent, the parties who went into possession being liable only to the purchaser. In Ryan v. Kirchberg (1885) 17 Ill. App. 132, a written lease for a term of eleven months was held to be surrendered by giving a parol lease while the original lease had yet a term of seven months to run, the parol lease being made for a period of one year. Accordingly, a warrant of attorney, contained in the written lease, to enter a judgment in an action of forcible retainer by con fession, was held ineffectual. It might well have been held in this case that the written lease was surrendered under its terms, as, prior to the entering into the parol lease, the lessor gave the lessee a notice, as provided therein, for the termination of the lease. Before the lessee had delivered up the possession in accordance with this termination, the new lease was entered into. The court, however, made the decision upon the termination of the written lease by the entering into the oral lease and the consequent operation of law. An oral lease, void under the Statute of Frauds, does not work a surrender by operation of law of the written lease. Lamont v. United States Reduction Co. (1915) 191 Ill. App. 446; Schieffelin v. Carpenter (1836) 15 Wend. (N. Y.) 400; Coe v. Hobby (1878) 72 N. Y. 141, 28 Am. Rep. 120; Smith v. Kerr (1888) 108 N. Y. 31, 2 Am. St. Rep. 362, 15 N. E. 31; Seymorn v. Hughes (1907) 55 Misc. 248, 105 N. Y. Supp. 249; Rogge v. Levinson (1908) 113 N. Y. Supp. 525. See Wilson v. Lester and Ettlinger v. Kruger (N. Y.) supra. In Schieffelin v. Carpenter (1836) 15 Wend. (N. Y.) 400, a lease under seal was held not terminated by the surrender of the premises by the lessee to the lessor, and the payment of the rent then due, in pursuance of an oral agreement that the premises should be surrendered up and the lease declared on, delivered up, and canceled, and a new lease executed to third parties, does not amount to a surrender, although the third parties to whom the premises were leased took possession of the premises and occupied the same, pursuant to such agreement, as tenant to the lessor, who accepted them as such and received rents from them, where the lease to the third party was void because not in writing. Accordingly, the lessor was held entitled to recover rent of the original lessee. But if an oral lease is valid, it may amount to a surrender of the written lease. Schieffelin v. Carpenter (N. Y.) supra (dictum); Smith v. Niver (1848) 2 Barb. (N. Y.) 180; Whitney v. Meyers (1852) 1 Duer (N. Y.) 266. In Smith v. Niver (1848) 2 Barb. (N. Y.) 180, one of two lessees was held to be discharged of his liability for rent on a lease for three years by an agreement between the parties to the lease, at the end of the second year, that he should be discharged, and that the other lessee alone should become the tenant of the plaintiff for the remaining year of the term specified in the lease. A surrender by operation of law results so as to discharge the lessee, where the lease is transferred, either by written assignment or by parol, to one who is accepted by parol by the lessor as lessee, in place of the original lessee, and actual surrender of the premises to the transferee takes place. Amory v. Kannoffsky (1875) 117 Mass. 351, 19 Am. Rep. 124; Logan v. Anderson (1845) 2 Dougl. (Mich.) 101; Wallace v. Kennelly (1885) 47 N. J. L. 242; People's Sav. Bank v. Alexander (1891) 140 Pa. 22, 21 Atl. 248. Thus, a surrender by operation. of law has been held to be proven by facts showing that the lessee in a lease under seal, who had never entered into possession of the premises, assigned the lease in writing to another, and that the lessor, who was present when the assignment was made, assented to it and to the change of tenant, and agreed to accept the assignee as his tenant in the place of the lessee, and also looked to the assignee for rent of the premises, and stated to the lessee that he would discharge him from the payment of rent, and take the assignee for his tenant. Logan v. Anderson (1845) 2 Dougl. (Mich.) 101. It is stated that if the lessor accepted the assignee as his tenant with the assent of the lessee, the assent would have the same legal effect as if the lessee had actually surrendered the former lease. In Wallace v. Kennelly (1885) 47 N. J. L. 242, where the lessee had assigned his term to another, who paid rent to the lessor, it is held that, if such other was accepted by the lessor as substituted in the place of the lessee as his tenant, the lease was terminated so far as the lessee was concerned: he could not thereafter be held liable for rent. An oral agreement between a lessor and lessee that the lessor would receive rent from a sublessee in possession, and that lessee might give up the lease, followed by a delivery of the lease to the lessor, has been held to amount to a surrender by operation of law. Amory v. Kannoffsky (Mass.) supra. In Vandekar v. Reeves (1886) 40 Hun (N. Y.) 430, there was held to be a surrender by operation of law, where a lessee made a verbal agreement for the sale of some of his property on the leased premises, and of his interest in and under the lease in question, an agreement which was completed by the lessee moving out, and his transferee moving into the premises, and payment of the price agreed upon for the purchase, where the lessor consented to the sale and transfer, and agreed to receive the transferee as tenant under the lease in place of the original lessee, and to look to the transferee for the rent to become due for the remainder of the term. The court states that, although this arrangement was oral and related to a term exceeding one year, it operated with the act of the parties under it to discharge the original lessee from a claim for future rent, as was in fact expressly agreed. Continuing, the court states: "It is important, of course, that it be established that the lessor gave assent to the termination of the lease as to the original lessee, and accepted the new party as tenant in his place." It has been held that a parol surrender, although invalid in law, will be sustained in equity, where in pursuance thereof the lessee has given up possession of the leased premises and the lessor leases them to another tenant. Stotesbury v. Vail (1861) 13 N. J. Eq. 390. The tenant had, in accordance with the parol agreement, surrendered the premises, and given his copy of the lease to the lessor, together with the key of the house. It is stated that in equity the action of the tenant in abandoning the premises in accordance with the parol agreement effects the surrender of the lease, as it would be most inequitable to pre |