Shanghai, March 16.
Before Hon. O. 8. Losixorer, Judge.
After reviewing the evidence, His Honour continued:—We do not see that appellee's continued _presentation of receipts for the full amount should count against oppe lant so long as he did not pay it for any month. After all it is not so much what the parties did after the lease was executed as what they understood at the time thereof. If each had in mind then a different suite of rooms no valid lease was 250 effected. If both had the same understanding then the burden rests upon appellee to prove that he furnished the suite so understood. For "delivery of possession of the demised premises by the lessor to the lessee is necessary to the obligation to the latter to pay rent." Of course this means the whole premises. We are unable to find that appellee has met this burden and Cald as the phraseology of the lease was his we must agree with appellant's counsel that the lower Court erred in finding for appellee.
Of course this merely relieves ap-
Tam Wa v. F. G, Boulon, This was an appeal from the Consular Court for the District of Shanghai. Mr. Fleming appeared for the appellant, and Mr. Masters for the respondent.
In the course of his judgement His Honour said:—This cause has been heard here upon the original tion of the premises actually occupied by him. We find no specific testimony as to the value of said portion but the fact that appellant consented to and did pay Tls. 150. for it during July, notwithstanding the interruptions of which he complained, would seem to constitute a 157 clear admission that it was worth an equal amount for each of the two subsequent months and that, since he has paid but Tls. 100 therefor, he still owes appellee Tls. 200.
Appellee's petition claims "damages for the breach by the defendant of the said agreement" and ju his original brief it is observed: "Up to the time of the reletting the amount of damages would of course be the full amount of rent.'"
No evidence has been offered in the lower Court or here as to when the suite was relet and we cannot presume that it remained vacant for any considerable length of time. It also stated in appellee's reply brief (and this may be considered as equivalent to an admission) that the rooms which appellant claims to have leased are now and for some time past have been, rented for a total of is. 920. which is Tls. 40. more than the lease in question called for. Clearly there is no basis in this for awarding damages especially under the English rule "that a reantry and reletting of abandoned premises' by the landlord create a surrender by operation of law, and release a tenant from payment of subsequently accruing rent." Moreover, if the lease failed to take effect for lack of mutuality there was no unexpired term.
The judgement of the Consular Court is reversed, but it is further considered and adjudged that appelled have and recover from appellant the sum of Tls. 900. Shanghai currency. And since appellant failed to tender any sum for the balance due for use and occupation the costs must be adjudged against him.
Text read from the printed page and cleaned; old type leaves the occasional error.