and plaintiff brings error. Reversed, and new trial awarded.

Howe & Davis (John A. Bernhard, on the brief), for plaintiff in error. Samuel Kalisch, for defendant in error.

SWAYZE, J. The defendant employed Sheldon & Co. as brokers to sell stock which he owned. According to the testimony of the plaintiff, the order was to sell "at 50% or stop at 50." According to the defendant, his order was to "sell at 50% or 3%, but not below 50, stop at 50." The plaintiff sold at 49%. There was testimony on the part of the plaintiff that in the trade such an order as the former authorized a sale at a price below 50. The defendant was notified of the

sale, and immediately ordered the brokers to cover that stock at once. The defendant testified: "That means buy it back, so there would not be much loss on either side." He says the stock was then selling at 49% or 49%, so that his order according to his own testimony authorized them to cover at as high a price as 49%. The market, however, seems to have been a rising one, and the plaintiffs were obliged to buy in the stock at a higher price to protect themselves and brought this action, declaring upon the common counts. The learned trial judge upon these facts directed a verdict for the defend

ant.

The defendant attempts now to sustain this verdict on several grounds, which we shall notice in order.

(1) The contention that the verdict can be sustained because the plaintiff cannot recover upon the common counts in assumpsit is untenable. It is an attempt to justify a verdict for the defendant upon a mere failure of the plaintiff to plead correctly. Even if we were dealing only with a nonsuit, the objection to the declaration ought not to prevail. It contains a count for money paid. This count is proper where, as in this case, money has actually been paid, provided it has been paid at the defendant's request, express or implied. 1 Chitty, Pl. 350. A request will be implied where a principal is bound to indemnify an agent, and the agent pays the money to prevent loss. Leake on Contracts, 38 (3d Ed.). In reference to this very subject, the author says: "The employment of a broker to buy or sell stock or shares imports a request to make all payments required by the then existing rules of the stock exchange, or other market in which he is employed to act, so far as such rules are legal and reasonable." The cases he cites support his statement. The question has been dealt with in Perin v. Parker, 126 III. 201, 18 N. E. 747, 2 L. R. A. 336, 9 Am. St. Rep. 571, which was a case of a sale of grain by a broker on the Chicago Board of Trade. Moreover, the testimony of the defendant himself that he authorized the plaintiff to cover the sale at a price as high as

much loss on either side, would justify an inference by the jury that the defendant recognized his liability and authorized the plaintiffs to expend their money for his use.

(2) The contention that there was no memorandum such as is required by the statute of frauds is without merit. As between the plaintiff and the defendant, the contract was not one of sale, but of agency, and the authority was not required to be in writing. Keim v. O'Reilly, 54 N. J. Eq. 418, 34 Atl. 1073. It cannot be said that there could be no obligation to indemnify because of the want of a memorandum as between Sheldon & Co. and their vendee, for, since Sheldon was authorized to sell for the plaintiff, he was authorized to do what was necessary to complete the sale; and in substance it made no difference whether Sheldon's contract was executory and evidenced by a written memorandum, or executed, either by an actual delivery of the stock or a settlement on account thereof with the vendee.

(3) There is sufficient evidence to warrant a finding that the account had been assigned to the plaintiff. The objection that he could not sue in his own name, if tenable at all, was cured by an amendment at the trial.

(4) The more important question is whether it was proper for the court to construe this contract in accordance with the defendant's view, or whether the question what the actual contract was should have been submitted to the jury. Since the contract was an oral one and the parties differed as to its exact terms, it was obviously necessary for a jury to settle which version was correct, under proper instructions as to the meaning of the words, if that meaning itself was so plain that it also did not involve a jury question. Wigmore on Evidence, § 2556. The words used in this case were not plain. Unexplained they mean nothing to me, and probably nothing to any one not familiar with the language of the stock exchange. They required evidence to explain their meaning, as much as if they were written in a foreign tongue, or formed part of a cipher code. This whole subject is admirably discussed by Prof. Wigmore. Wigmore on Evidence, §§ 2461, 2467. It is needless, however, to go into the subject at length, since it has already been dealt with in our own decisions, of which the more recent are Halsey v. Adams, 63 N. J. Law, 331, 43 Atl. 708; Smith & Wallace Co. v. Lunger, 64 N. J. Law, 539, 46 Atl. 623; Wallace v. Leber, 65 N. J. Law, 195, 47 Atl. 430; Calumet Construction Co. v. Hoboken, 78 N. J. Law, 676, 76 Atl. 970. Where the evidence as to the trade meaning of a term is conflicting, a jury question as to which meaning is correct arises, even when the contract is in writing. Smith & Wallace Co. v. Lunger, 64 N. J. Law, 539, 541, 46 Atl. 623. Much more must this be the case where the contract is an oral one and there is a conflict of evidence

such abandonment, sold the property to another, the parties holding the option abandoned it. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 1151; Dec. Dig. § 256.*]

3. LANDLORD AND TENANT (§ 109*)-FRAUDS, STATUTE OF (§ 63*)-TERMINATION OF RELATION-SURRENDER BY OPERATION OF LAW.

Where tenants told their landlord, demanding rent, that they had no money and would have to get out, and that they were going to get out and thereupon did so, and the landlord went into possession, there was a surrender by operation of law, terminating the relation of landlord and tenant, valid under the exception made by the statute of frauds.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 350-365, 368-369; Dec. Dig. § 109; Frauds, Statute of, Cent. 'Dig. § 98; Dec. Dig. § 63.*]

Pitney, Ch., dissenting.

Error to Supreme Court.

Action by Herman M. Sypherd, trustee in bankruptcy of Channell Bros., against Charles R. Myers. There was a judgment for plaintiff for nominal damages, and he brings error. Affirmed.

By this writ of error Herman M. Sypherd, trustee in bankruptcy of Channell Bros., seeks to reverse a judgment of the Supreme Court entered upon a verdict directed in his favor for six cents damages against Charles R. Myers, whom plaintiff in error had sued for the breach of an option given to his bankrupts.

Myers had leased the Piedmont Hotel to Channell Bros. for one year. The lease gave to the lessees an option to purchase the property for $57,000 if the lessor should obtain title during the term. The term expired without the fulfillment of this condition and was renewed for one year from June 1, 1900, at a higher rental, with a purchase price of $62,000 under a similar option. During this term the lessees defaulted wholly in the payment of their rent, and about August 25, 1900, notified Myers that they could not pay him any money at all and would have to get out. They went out of possession and Myers went in. On September 4th Channell Bros. were adjudged bankrupts. On September 8th Myers obtained title and on September 12th tendered it to Channell Bros., who, without disclosing the bankruptcy proceed ing, informed Myers that they were not in a condition to comply with their agreement; whereupon Myers, on September 15th, sold the property to one Bechtel. On October 15, 1900, the plaintiff in error was appointed the trustee in bankruptcy of Channell Bros., and on January 3, 1902, he began this suit for damages for the loss of the bargain resulting from Myers' breach of the option contain

On the trial the defendant sustained his pleas, and at the close of the testimony the court, of its own motion, directed a verdict for six cents damages, to which the defendant excepted upon the ground that he was entitled to a verdict. The plaintiff also excepted and took this writ of error.

William M. Clevenger and George A. Bourgeois, for plaintiff in error. Clarence L. Cole, for defendant in error.

GARRISON, J. (after stating the facts as above). If the trial judge was right in directing a verdict for the plaintiff in error, he was wrong in limiting the recovery to nominal damages, for, if the defendant was liable to the plaintiff at all, there was testimony that should have gone to the jury in support of a more substantial measure of damage.

This error does not, however, entitle the plaintiff to have the judgment for nominal damages reversed, if it conclusively appears that he was not entitled to a judgment for any sum.

We think that this does conclusively appear in two different aspects of the case.

First, because Channell Bros., prior to their being adjudged bankrupts, abandoned their option from inability to comply with its terms and so notified Myers, who in good faith acted upon it. The facts in respect to this are uncontroverted. There was no contract of sale between Channell Bros. and Myers, i. e., no mutual undertaking by which the former agreed to purchase the property and the latter to make them a deed for it. What Channell Bros. got by the option was a right to purchase for $62,000, providing that when Myers should obtain title and signify his purpose to convey the same to them they should at once comply with the conditions as to payment.

The obligation of Myers under this provision involved a duty of tender, the performance of which could, upon familiar principles, be waived by the Channell Bros., and such duty would, upon like principles, be deemed to be waived by unequivocal declarations on their part evincing that such an act would be wholly unavailing. Such was the case established by the uncontradicted testimony.

The situation was this: By August 25, 1900, the Channell Bros. were, and knew that they were, bankrupts in fact. On the rent of the hotel they had defaulted in every payment; the note given for the first $2,000 was not paid, and they had defaulted in the $1,000 payments due July 20th, July 30th, Au

ed specially that before he acquired the title in question the lessees had abandoned their option to purchase, and had surrendered their term to the defendant, who accepted such surrender.

about this last date they told Myers, in response to his importunities for his rent: "We are done. We have got to get out; we can't pay you any money at all. We haven't got any money." Myers then asked them about the agreement, which, although it permitted a large sum to remain on mortgages, called also for a considerable cash payment. "They said," quoting from the testimony, "they didn't want nothing to do with it and didn't have anything to do with it. They said they didn't want nothing to do with it." This unequivocal declaration, coupled with the admitted fact of their hope lessly impecunious condition, rendered it entirely useless for Myers in any merely formal manner "to signify his purpose to convey the property to them," and relieved him from the performance of such a palpably nugatory act. The fact that a few days later Myers made a tender, which was declined, while it does not help his legal position, since it was after the adjudication of bankruptcy, was evidence of his good faith; it was at most a superfluous act on his part, and yet it is upon the technicality that this tender was made to the wrong party that the trustee in bankruptcy has built up his case. If there had been no such tender, Channell Bros. could not have waited until Myers, relying upon their declared abandonment of their option, had sold the property, and then come upon him for damages. The right of their trustee rises no higher. If, therefore, the date of the conversation referred to is conclusively fixed by the testimony as prior to the adjudication in bankruptcy, I am clearly of the opinion that Myers' duty to Channell Bros. was at an end, and that no right against him passed to the plaintiff as their trustee.

Inasmuch as the establishment of this date is equally pertinent to the other aspect of the case and rests upon the same testimony, I shall defer its consideration until this second point has been stated.

The second point is that the title to the property was not obtained by Myers during the continuance of the lease, which was the condition on which the right of purchase by Channell Bros. depended. The giving up of possession by Channell Bros. and its acceptance by Myers, which was specially pleaded by the latter, was conclusively established at the trial by testimony of acts that by operation of law constituted a surrender.

The testimony referred to was as follows: Channell Bros. in the conversation already referred to told Myers that "they had got to get out," and that "they were going to get out." This was followed by testimony that "they went out of possession," and that Myers got possession, and counsel for the plaintiff elicited the positive testimony that Channell Bros. gave up the possession to Myers. To the question, "How did you get possession?" the answer was, "Well, they gave it up themselves." This testimony which was entirely uncontradicted evinced a surrender by act and operation of law, and hence was within the exception made by the statute of

The essentials of this recognized mode by which the relation of landlord and tenant may be terminated were stated by Mr. Justice Collins in the case of Meeker v. Spalsbury, 66 N. J. Law, 60, 48 Atl. 1026, and the statement there made was approved and adopted by this court in the more recent case of Miller v. Dennis, 68 N. J. Law, 320, 53 Atl. 394. The text is: "When the minds of the parties to a lease concur in the common intent of relinquishing the relation of landlord and tenant and execute this intent by acts which are tantamount to a stipulation to put an end thereto, there at once arises a surrender by act and operation of law."

Where the act relied upon is equivocal, the fact that it is in execution of a common intent must be established as other controverted questions of fact are established in courts of law; but where the intent is unequivocal, provided the act itself be established, a surrender by operation of law at once arises.

To state the matter in another way: The statute of frauds gives effect to the intention of parties, not reduced to writing, only when such intent is executed by the act of the parties themselves. Under this rule the intention of the parties is deemed to be manifested by the acts they mutually perform, which may be either equivocal or conclusive; if the former, a jury question is presented, if the latter, a court question only; but with the operation of law upon an unequivocal act the intention of the parties has nothing whatsoever to do; hence such a case presents a question of law only. That a surrender by operation of law in such a case does not result from the intention of the parties is forcibly illustrated in the case of the acceptance of a new lease by the lessee. In Johnstone v. Huddlestone, 4 B. & C. 922, Bayley, J., said: "When a lessee during the term accepts a new lease from the lessor, as the second lease cannot be good unless there was a previous surrender of the first, and as the lessee by accepting the second lease admits the ability of the lessor to demise, the law that the second lease may take effect works a surrender of the first." In such cases it will be observed the surrender is not the result of intention; the surrender is of law, and takes place independently of the intention that such should be the legal effect of the act done.

Mr. Finlason, in his admirable treatise on Pleading, deals with this question at length, and, speaking of the case of the taking of a second lease, says: "It would not at all alter the case to show that there was no intention to surrender the particular estate, or even that there was an express intention to keep it unsurrendered. In all these cases the surrender would be the act of the law and would prevail in spite of the intention of