March 29, 1915. The opinion of the Court was delivered by
MR. JUSTICE FRASER.
This case was commenced in the magistrate's Court. This appeal involves, to some extent, questions of fact, which cannot be considered by this Court.
There are six exceptions, but it does not present so many questions. In order to decide this case, this Court must take the undisputed facts and also the statement of disputed facts most strongly against the appellant.
It, therefore, appears that the respondent rented rooms from the appellant under a verbal contract that had been in force for some months, the rent payable monthly in advance.
On February 1st, 1913, the respondent agreed to keep the premises for the month of February, but should be allowed to surrender the premises at any time during the month that it saw fit to do so, on condition, however, that it secured another tenant to take its place. On the 17th day of February the respondent vacated the premises and notified the appellant that it had secured another tenant to take its place. The appellant (the landlord) objected to the substituted tenants on the ground that they were undesirable. Why the substituted tenants were undesirable does not appear. When the respondent entered upon the month of February it became liable for the entire month of February, especially as the rent was payable in advance.
The only question in the case that this Court can consider is, did the respondent relieve itself from this liability by offering a substitute on the 17th of February?
It is very manifest that it did not. The rent was payable in advance (undisputed). It is undisputed that the rent was not paid on the first of February. There was no tender or even an offer to pay the rent from the 17th of February to the 1st of March, either by the respondent or the substitute tenant. The respondent tendered only the rent to the 17th February. This tender did not discharge the obligation, and the respondent is liable for the full month's rent. Besides, the key to the rooms, that was the token of possession, was not surrendered.
The judgment of the Circuit Court that allowed rent only for the time of actual occupancy is reversed.