dissenting:
I cannot agree with the conclusion that the question of eviction is not involved. As I read the evidence it fails to disclose conclusively that the plaintiff entered upon the premises for the purpose of making the repairs at the invitation of the defendant, or that there ever was a meeting of the minds of the parties upon any agreed line to be followed. Neither is the evidence conclusive of the fact that the defendant had abandoned the premises at the time plaintiff took possession. To the contrary the evidence of Mr. Wheelock discloses that at the time the plaintiff took possession he had not surrendered the *466keys; that- Ms first knowledge of the plaintiff’s possession was when he sent there for something, which he wanted in the offices. This evidence conld he properly construed to mean that he still had some things left there. He testified that his sign had been removed from the door; that all of these acts were without his knowledge or consent. Under this state of facts I think the question of eviction was properly submitted to the jury. This position is sustained by the authorities.— Hyman v. Jockey Club Co., 9 Colo. App. 299, 48 Pac. 671; MacKellar v. Sigler, 47 How. Prac. (N. Y.) 20; Jones on Landlord and Tenant (1906 Ed.), §548.
Mr. Wheelock’s first letter states if plaintiff should desire to have the offices occupied by tenants, satisfactory ^ arrangements could probably be made. To my mind the evidence is not conclusive that' satisfactory or any arrangements were ever made with the defendant concerning this subject, or the right to make permanent changes during the period of his lease. The fact that the defendant did not reply to the plaintiff’s letter of October the 19th would not avoid the rule that surrender was effected by the actions of the landlord.— Gray v. Kaufman Dairy & I. C. Co., 162 N. Y. 388, 56 Pac. 903, 49 L. R. A. 580, 76 Am. St. Rep. 327.
By the terms of the defendánt’s first letter if the plaintiff desired possession prior to the termination of the defendant’s .lease or prior to his surrender of the property in turning over the keys, etc., it was incumbent upon its manager to have seen the defendant and secured an understanding concerning it, as well as the privilege to have made repairs during the remainder of the term. The plaintiff entered into possession about six weeks prior to the expiration of the defendant’s term. During a part of this period it made permanent changes, improvements and repairs at a cost in excess-of $500. This was not for the purpose of securing tenants for the unexpired *467portion of the defendant’s term, but was for the benefit of the plaintiff in order to secure new tenants, which it did, whose leases run for a term of years. During the time that these changes and improvements were being made the premises were unfit for ocupancy. To my mind all of these facts were properly submitted, to the jury as evidence pertaining to the termination of the tenancy by the plaintiff.—Carson v. Arvantes, 10 Colo. App. 382, 50 Pac. 1080.
Mr. Justice Gabbert concurs in the views herein expressed.