The prevailing opinion bases its reversal upon the ground “ that there was a question of fact to be passed upon by the jury as to whether plaintiffs had accepted a surrender of the demised premises and retaken possession of the same in their own right as owners and executed the lease to the Haffners in their own right as owners and not as agents of the original tenants.”
When the case was closed by both sides the plaintiffs moved for a direction of a verdict in their behalf. The defendants neither moved to dismiss the complaint nor for a direction in their favor, nor did they request the trial court to submit any question of fact to the jury, thereby in effect conceding that there was no question of fact for the jury’s consideration.
The defendants contented themselves with an exception to the court’s ruling in granting plaintiffs’ motion for a direction and with a further exception to the court’s denial of their motion to set aside the verdict.
A study of the case on appeal reveals that the evidence is practically undisputed and that at no time during the trial was there the slightest intimation that the reletting to the Haffners constituted a surrender by defendants and an acceptance by plaintiffs of the demised premises. Nor was. there the remotest suggestion that the reletting was not accomplished pursuant to the written agreement of the parties as embodied in the two letters dated August 25, 1916, which are set out in *815the majority opinion. Indeed, the answer of defendants expressly admits the payment of $1,731.66, which the plaintiffs alleged in their complaint they had received on account of the rental sued for.
Upon the trial it was undisputedly shown that these moneys were received by the plaintiffs from the Haffners under their lease and credited to defendants who acquiesced in the application of the credit. There was thus no dispute that the defendants recognized that the Haffner lease was made with their approval. Nor is there the slightest hint in the record that the plaintiffs did not make honest efforts to relet the premises, or that they did aught which would reflect upon their integrity, or is there anything which would suggest bad faith on their part.
At the close of plaintiffs’ case a motion was made to dismiss the complaint upon certain grounds which did not include the point of a “ surrender and acceptance.” Surrender was a defense, the burden being upon the defendants to establish it. There was, however, no claim, nor evidence offered on defendants’ behalf on the trial that the premises were surrendered or that the surrender resulted from the reletting to the Haffners.
Besides, it must be borne in mind that the proof was that defendants left the keys to the premises with plaintiffs’ agent upon the understanding that the landlords were to relet for the account of the defendants “ in order to reduce any damage for which we are or may become liable and this arrangement is not to be considered as a surrender by us of said premises or the lease or the term thereby demised nor an acceptance thereof by you; nor to relieve us from any liability by (sic) us to you under the lease now in force, held by us of said premises.”
The reletting, therefore, was not made pursuant to the terms of the lease, but by virtue of a special request of the defendants aliunde the lease and upon the express agreement that the acts of the landlord as to reletting are not to be construed as a surrender of the premises or the acceptance thereof or as ground for relieving defendants from liability.
Meeker v. Spalsbury (66 N. J. L. 60) and MacKellar v. Sigler (47 How. Pr. 20) do not apply to such a situation as is here presented since the facts involved in those cases arose out of matters which affected the rights of the parties under *816the lease and which in law operated as a surrender and acceptance.
It would seem to follow from what has been stated that it was wholly immaterial that the landlords permitted the new tenants Haffner to make substantial alterations upon the demised premises or gave them permission to occupy the premises during alterations without compensation or that the lease to the Haffners extended beyond the term of the original lease. Since there was no proof of surrender by reason of such acts, they are immaterial. Incidentally it may be observed for aught we know it was by reason of these concessions that the defendants were enabled to make the lease from which the plaintiffs profited.
The judgment should be affirmed.
Judgment and orders reversed and a new trial ordered, with costs to appellants to abide event.