This action is against a surety for rent. No copy of the lease is furnished to the court by which we can ascertain the terms of it, and the only *169information we have of the conditions, is the statement of the counsel that the lease contained a clause providing that the rent should cease till the buildings should be rebuilt, if they were destroyed by fire.
The evidence shows that the buildings were destroyed by fire on the 24th June. Supposing this statement of the condition of the lease to be true, the rent ceased on that day, and the landlord was entitled to recover for the rent from 1st May to 24th June, payable on the quarter day, 1st August.
An eviction and surrender are both set up in the answer by way of defence to the claim for the August quarter and part of the Hovember quarter. Ho surrender is proven; a proposed surrender was talked of, but not executed, and this lease could only be surrendered by writing or by operation of law.
Hor do I think the evidence warrants the finding of an eviction. The rent was not to recommence until the premises were rebuilt. What the precise terms of this covenant were does not appear, but it is evident from the testimony that the premises were not properly finished up to the 1st of Hovember, 1853. Jennings so testified, and there is nothing to contradict his testimony. If not finished, the rent for the quarter ending 1st Hovember was not payable, and neither Phelps nor Sanderson was liable on that quarter for anything. Jennings appears to have been negotiating for a lease at the same time that Phelps was negotiating for a surrender, and he obtained possession of the key at a time when all were present, and it may be presumed with their assent. All these negotiations, however, appear to have failed. An eviction of the tenant is an interference with his possession of the premises or some part thereof, by or with the consent of the landlord, by which the tenant is deprived of the use without his assent; but where the tenant is present at a negotiation to relet the premises to a third person and does not object, but at the same time is proposing a surrender on his own part, a possession by such third person, under such circumstances, and particularly before the building was finished, could hardly be considered an eviction.
But even admitting that for the time during the occupation *170of the premises by Jennings, Phelps is to be considered as evicted by the landlord, such eviction only suspends the rent during the continuance of the eviction. The evidence shows that Jennings has been removed from the premises and that they are unoccupied, and consequently that the eviction is-at an end. The plaintiff’s right to the rent up to June 24th • appears therefore to be a valid one, and I think should have been allowed on the trial.
The defendant urges that the transaction between Phelps and Ogden amounted to a surrender. There is not evidence to warrant such a conclusion, but if it were proved that there was a legal surrender, still that would not affect the plaintiff’s claim for the rent of the portion of the quarter previous to the fire.
It is said that such a surrender was an' alteration of the contract, by which the surety was discharged. It is a sufficient answer to this objection to say that no legal alteration of the contract could be made except in writing, and that the proposed alteration was never completed by the signature of the landlord to the surrender or his acceptance of it.
I feel some hesitation in deciding that the judgment must he reversed, because the documentary evidence before the court below is not furnished to this court with the return, and it is only because the counsel on both sides have stated the conditions of the lease that we have examined the points submitted. It is important that the court should have all the testimony, in order properly to understand the reasons for the decision below. From what is furnished to us, we think the first item of the plaintiff’s claim should have been allowed.
Judgment reversed.