vent the landlord from recovering rent from the lessee upon the ground that the surrender was not made in writing in pursuance of the Statute of Frauds. Accordingly, the lessor was enjoined from proceeding at law to recover the rent.

The oral agreement is not the determinative factor of a surrender by operation of law. A surrender by operation of law was held to have taken place where the lessee actually surrendered possession of the premises to the lessor by turning the premises over, at the request and direction of the lessor, to third parties, who had leased them from the lessor, and assigning to such third parties his interest in the lease for the remainder of the term. Commercial Hotel Co. v. Brill (1905) 123 Wis. 638, 101 N. W. 1101.

No surrender by operation of law results, where there is no action taken by the parties in pursuance of the oral agreement that is inconsistent with the continuance of the term in the lessee. Thus, where the lessor verbally assented to the sale of the interest of one of the colessees to the other lessee, and to his abandonment of the premises, and agreed verbally with the purchaser to look to him alone for the performance of the covenant, but nothing inconsistent with the continuance of the term in the other lessee took place, there was held to be no surrender. Felker V. Richardson (1893) 67 N. H. 509, 32 Atl. 830. It has been held that under a lease containing a covenant that, if the premises or any part thereof should become vacant during the term, the lessor might re-enter the same and relet the premises as the agent of the lessee, and receive the rent thereof, applying the same first to the payment of such expenses as the lessor might be put to in renting the same and then to the payment of the rent due upon the lease, the mere acceptance of the keys and possession of the premises are not sufficient to raise a presumption of surrender. In such a situation it is for the jury to determine, upon all the facts of the case, whether the acceptance of the keys and the subse

quent acts done by the lessor are in furtherance of the surrender of the premises and an acceptance of the same. Hurley v. Sehring (1891) 62 Hun, 621, 43 N. Y. S. R. 240, 17 N. Y. Supp. 7.

Instruments denominated oil and gas leases frequently grant the oil and gas in the described land, and it is held that such a grant cannot be surrendered by parol. Heller v. Dailey (1901) 28 Ind. App. 555, 63 N. E. 490; Ramage v. Wilson (1905) 37 Ind. App. 532, 77 N. E. 368. See Hooks v. Forst (1895) 165 Pa. 238, 30 Atl. 846, 18 Mor. Min. Rep. 139, supra, as to surrender of oil and gas lease.

Some cases hold merely that no writing is necessary to the surrender of a lease. ROGERS V. DOCKSTADER (reported herewith) ante, 663; Weiner v. Baldwin (1899) 9 Kan. App. 772, 59 Pac. 40; Harms v. McCormick (1889) 30 Ill. App. 125, reversed on other grounds in (1889) 132 Ill. 104, 22 N. E. 511. If the surrender has been completed by the delivery of possession and acceptance thereof, the lease is terminated. In Weiner v. Baldwin (1899) 9 Kan. App. 772, 59 Pac. 40, an action by a landlord against his tenant, who defended on the ground that he had sold his business, which occupied the leased premises, with the consent of the landlord, and delivered possession of the premises to the purchaser of the stock of goods, the jury were instructed that an agreement to surrender the lease need not be in writing, and the contract to surrender must be shown by the tenant to have been made either in express terms, or to be implied from the facts and circumstances, and dealings between the plaintiff and defendant and the other parties to whom the defendant transferred the possession of the premises. The instructions were approved as a whole, no special attention being directed to this particular instruction.

b. Theory that written lease may be surrendered by parol.

As stated in the introduction, some cases have treated the question as being whether a written contract can be discharged by an oral agreement, and

state that, when executed, such an agreement becomes legally effective. Miller v. Demmis (1902) 68 N. J. L. 320, 53 Atl. 394; Tallman v. Earle (1891) 37 N. Y. S. R. 271, 13 N. Y. Supp. 805; Sherman v. Engel (1896) 18 Misc. 484, 41 N. Y. Supp. 959. In Tallman v. Earle (1891) 37 N. Y. S. R. 271, 13 N. Y. Supp. 805, a lease under seal for a term of one year was held surrendered by a surrender of the premises at the end of five months, and the payment of commissions to a real estate broker for reletting them, in pursuance of an oral agreement; the court treats this as an executed parol agreement, and holds that a contract under seal can be discharged before breach by such an agreement.

See Greider's Appeal and McDaniels v. Harrington, subd. II. a.

It is stated generally in some cases that a written lease may be surrendered by parol. Baker v. Pratt (1854) 15 Ill. 568; McKenzie v. Lexington (1836) 4 Dana (Ky.) 128. In Baker v. Pratt (Ill.) supra, one of three lessees took a second lease to himself, while the first lease was still unexpired, and together with the landlord destroyed the first lease. The lessee thus taking the second lease never called upon the landlord to give him possession of the entire premises, and never made an effort to obtain such possession, but seems to have been satisfied with the fact that his colessees under the former lease remained jointly in possession with him, and pleaded this fact as a defense to an action by the landlord against him for the rent, under the subsequent lease. It is not clear but that the court bases its opinion, in part at least, on the fact that the lease involved was one which would have been valid had it been by parol. In Prior v. Kiso (1883) 81 Mo. 241, it is stated that "a lease under seal may be surrendered or changed by subsequent contract, by parol or writing, under seal or without seal." It seems, however, in this case, that there had been an actual surrender of the premises in pursuance of the agreement, and the lessor had consented to the surrender and accepted another as ten

ant. Moreover, the discussion in this regard takes place in a part of the opinion concerned with the liability of sureties. See Churchill v. Lammers (1894) 60 Mo. App. 244, supra. It seems that there was no denial of the fact that a written lease had been set aside by a subsequent verbal agreement in Blackman v. Kessler (1899) 110 Iowa, 140, 81 N. W. 185.

While this rule is stated broadly enough to cover an executory agreement, the courts which so state the rule apply it providing certain conditions exist or certain things are done, and hold that if these conditions do not exist or these things are not done the surrender is invalid. A request to charge that a written contract of lease cannot be rescinded verbally without a change of possession, or without a writing dispensing with the same, signed by the lessors, was held properly refused, but the court states that this request might have been proper under the requisite qualifications. It is not stated what the requisite qualifications are. National Bank v. Bones (1885) 75 Ga. 246. One of the conditions usually laid down is that there must be a surrender of the premises with the intention of surrendering the term. Duncan v. Moloney (1904) 115 Ill. App. 522. See supra, II. See Prior v. Kiso (Mo.) supra. It is stated in Strong v. Schmidt (1897) 15 Ohio C. C. 233, 8 Ohio C. D. 551, same case on first appeal in (1897) 13 Ohio C. C. 302, 7 Ohio C. D. 233, that an agreement to make a future surrender must be in writing, but an oral agreement to surrender, accompanied by an actual possession at the termination of the contract of lease, accepted by the grantor, takes the contract out of the statute, and may be valid as a surrender. No importance is attached as to the length of time the lease had to run.

Even a surrender of the lease with the possession of a portion of the premises has been held to be a valid termination of the lease, if made with the intention of completing the surrender. McKenzie v. Lexington (Ky.) supra.

If there has been a surrender of the

premises and an acceptance thereof in pursuance of the oral agreement, the surrender is good. This is treated as an executed agreement, and it is held that even a lease under seal may be thus surrendered. Alschuler v. Schiff (1896) 164 Ill. 298, 45 N. E. 424. Upon the authority of this case the parties conceded this rule in Bloomquist v. Johnson (1903) 107 Ill. App. 154.

In Bowman v. Wright (1902) 65 Neb. 661, 91 N. W. 580, 92 N. W. 580, where there was a parol change of the terms of a written lease, it was urged that the written lease had been abandoned and surrendered, and a new one substituted at a less rent. The agreement had been performed according to the terms of the new lease, and the court states that "so long as the agreement has been performed, the Statute of Frauds is out of the way, and the case is like any other executed modification of an agreement."

An oral agreement to surrender a lease has been sustained as a cancelation of the written lease, although the lessee remained in possession under a subsequent verbal lease, entered into before the surrender had taken place, where the parties subsequently acted upon the assumption that the oral lease was in force. Evans v. McKanna (1893) 89 Iowa, 362, 56 N. W. 527. The argument in this case was that the oral contract was executory and that the agreement to cancel the lease was never executed. In answer to this argument the court states that the facts in the case show that there was an agreement to cancel the written lease, and that that arrangement was fully consummated, and the parties actually entered into a new oral lease containing different conditions from those in the original lease, and in pursuance thereof executed the subsequent oral contract and carried it out, and that such amounted to a cancelation or surrender of the original lease by operation of law. The court further states that the lessor had done certain work upon the premises provided for in the oral lease, and that "surely, in view of these facts, it cannot be said that the

lessor had not accepted the cancelation of the first lease, and a surrender of the premises thereunder. His acts, in part complying with the conditions of the oral lease, thoroughly show that both parties considered the written lease at an end." Accordingly, a written lease for a term of five years was held surrendered by the oral agreement of cancelation, made after nearly three years of the term had expired, and the subsequent acts of the parties in accord with the oral agreement, and the written lease was held to be no longer in effect, so that the landlord could not enforce its provisions.

An oral agreement seven months after the beginning of a lease for three years, whereby the tenant agreed to surrender the lease and vacate the premises on written notice, was stated to be valid in Eggers v. Paustain (1918) - Iowa, -, 169 N. W. 739. The theory of this decision is not clear. Although it was urged that evidence of the oral agreement was incompetent, that it was within the Statute of Frauds, the court states simply that "an oral agreement, if any, to terminate the lease, was valid." The question arose in an action by the landlord on a rent note in which the tenant set up a counterclaim for damages for wrongful eviction. It seems that the tenant vacated voluntarily in response to a written notice, and the above oral agreement was shown as authority for the notice.

Some cases, without expressly sustaining the validity of the parol surrender, hold that where it is mutually agreed between the parties that a lease shall be surrendered, and a new one is thereupon made with another party, and the landlord accepts the new party as his tenant, this will estop the landlord thereafter from denying the surrender of the first lease, notwithstanding it was in writing under seal, and the agreement to surrender was verbal. Dills v. Stobie (1876) 81 III. 202.

That a written lease may be surrendered by parol is especially true if the lease is one not required by the Statute of Frauds to be in writing. In Stewart v. Munford (1878) 91 Ill. 58,