{
  "id": 2805841,
  "name": "Fausto NOCE, Executor of the Last Will and Testament of Blas Noce, aka Blas Noche, deceased, and Elvira P. Noce, aka Elvira P. Noche, Plaintiffs-Appellees, v. Doyle R. STEMEN and Marietta Stemen, Defendants-Appellants",
  "name_abbreviation": "Noce v. Stemen",
  "decision_date": "1966-10-24",
  "docket_number": "No. 8005",
  "first_page": "71",
  "last_page": "73",
  "citations": [
    {
      "type": "official",
      "cite": "77 N.M. 71"
    },
    {
      "type": "parallel",
      "cite": "419 P.2d 450"
    }
  ],
  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
  "cites_to": [
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      "reporter": "S.W.2d",
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      "cite": "40 N.M. 358",
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    {
      "cite": "214 P. 323",
      "category": "reporters:state_regional",
      "reporter": "P.",
      "weight": 2,
      "opinion_index": 0
    },
    {
      "cite": "414 P.2d 5181",
      "category": "reporters:state_regional",
      "reporter": "P.2d",
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    },
    {
      "cite": "76 N.M. 299",
      "category": "reporters:state",
      "reporter": "N.M.",
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        8501923
      ],
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      "case_paths": [
        "/nm/76/0299-01"
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  "last_updated": "2023-07-14T20:38:38.028708+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "\u2022 \u2019 MOISE,. J., and WALDO SPIESS, Judge of Court of\u2019Appeals, concur."
    ],
    "parties": [
      "Fausto NOCE, Executor of the Last Will and Testament of Blas Noce, aka Blas Noche, deceased, and Elvira P. Noce, aka Elvira P. Noche, Plaintiffs-Appellees, v. Doyle R. STEMEN and Marietta Stemen, Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "\u25a0 OPINION\nCOMPTON,'Justice.\nPlaintiffs brought this action against the defendants to recover rents allegedly due under a written lease, and for damages to the leased 'premises. The' defendants defended on the ground -that the lease had been terminated by operation of law. The trial judge found that plaintiffs were entitled to recover the rentals due and damages for injury to the premises. Judgment was entered accordingly and the defendants appeal.\nThe sole question is whether there was a surrender and acceptance of the leased premises by act and operation of law. There is no appeal from the award for damages to the premises.\n: The appellees, as lessors, and the appellants, as lessees, entered into a written lease whereby the appellants le\u00e1sed th\u00e9 premises for a term of four years commencing March 1, 1962, rent payable in monthly installments of $100.00. The appellants paid monthly rentals through the first half of June,-' 1964, but made\u2019n\u00f3 payments thereafter.\nThe appellants point to certain acts which they claim are -so \u2022 inconsistent with the existence of a landlord .'and tenant relationship as to constitute surrender by operation of ' law. ' They emphasize the facts that the appellees received the $50.00 rent payment to June. 15, 1964, and retained the keys to the premises mailed to them by the appellants from California. Whether acceptance of- the money and retention of the keys by the appellees effected a surrender of the premises depended upon the facts and circumstances, and the lessors\u2019 intent in retaining the keys. Kennedy v. Nelson, 76 N.M. 299, 414 P.2d 5181 Mere accept\u00e1nce of keys and partial rentals by a landlord without more does not terminate a lease nor relieve a tenant of his rental obligations. \u25a0 Jones, Landlord and Tenant, \u00a7 539; McAdam, Landlord and - Tenant (5th ed.) \u00a7 323; Tiffany, Real Property (3d ed.) \u00a7 962; 3A Thompson, Real Property, \u00a7 1346, page 642 ; 32 Am.Jur., Landlord and. Tenant, \u00a7 906; and 51 C.J.S. Landlord and Tenant \u00a7 125.\nAppellants also point to the fact that appellees removed the air conditioning unit from the premises thereby making it impossible' to carry on appellants\u2019 business. This issue was litigated and resolved in appellees\u2019 favor.' The evidence' shows that the unit was removed only after appellants had abandoned the premises, and that it was removed for\u2019the purpose- of\" making repairs. In Heighes v. Porterfield, 28 N.M.445, 214 P. 323; we held that the landlord\u2019s entering and caring for the. premises after the tenant\u2019s abandonment did not effect an acceptance of surrender. See,' also, Tiffany, Real Property, supra; 3A Thompson, Real Property, \u00a7 1345, page 636; 32 Am.Jur., Landlord and Tenant, \u00a7 907; and 51-C.J.S. Landlord and Tenant, supra.\nAppellants point to the further fact that appellees tried to lease the premises to a third party after they left the premises. There is a conflict 'in the evidence in this regard and the issue was resolved in appellees\u2019 favor by the trial court. But even had the appellees attempted to procure a new tenant, this act would not necessarily constitute an acceptance of appellants\u2019 surrender, depending upon the lessors\u2019 intent, either expressed or implied. Armijo v. Pettit, 32 N.M. 469, 259 P. 620. In Heighes v. Porterfield, supra, it was recognized that a landlord' may rent the leased premises on behalf of the tenant, the tenant remaining liable for an.y rents due for the unexpired term. See, also, Me Adam, Landlord and Tenant (5th ed.) \u00a7 322; Tiffany, Real Property, supra; and 3A Thompson, Real Property, supra. \u2022\nFurther, the appellants point to the facts that they removed their equipment from the premises with appellees\u2019 consent; that a' sign was placed on' the driveway of the leased .premises. advertising a nearby business. . They argue that these facts show'an acceptance of the surrender.. The trial court obviously was not impressed by-these -facts. .Mr. Noce testified to the. effect that he was not aware of the possibility of perfecting a lien on the equipment, and that the sign was placed on the \u2019premises without his knowledge,' after appellants, ceased- their operations. The question whether the acts and circumstances here amounted to a surrender and acceptance was one for the fact finder. His \u2022 findings against the appellants. have substantial support in the evidence and should not be disturbed. See Elliott v. Gentry, 40 N.M. 358, 60 P.2d 203. See, also, Rauth v. Dennison, 357 S.W.2d 201 (Mo.App.); Tiffany, Real Property, supra; 3A Thompson, Real Property, \u00a7 1344, page 627; and 51 C.J.S. Landlord and Tenant \u00a7 126. In Elliott v. Gentry, supra, we said:\n\u201cThe burden is on the party relying on a surrender of a lease to prove it, and where it is to: be inferred from circumstances inconsistent with intention to .perform, the proof must be clear.\nWe conclude that the lease was not terminated by act and operation of law. Finding no error, the judgment should be affirmed.\nIt is so ordered.\n\u2022 \u2019 MOISE,. J., and WALDO SPIESS, Judge of Court of\u2019Appeals, concur.",
        "type": "majority",
        "author": "COMPTON,'Justice."
      }
    ],
    "attorneys": [
      "\u2019 Robertson & Reynolds,' Silver City, for appellants.",
      "E. Forrest. Sanders] William W. Bivins] Las -Cruces, for appellees. '"
    ],
    "corrections": "",
    "head_matter": "419 P.2d 450\nFausto NOCE, Executor of the Last Will and Testament of Blas Noce, aka Blas Noche, deceased, and Elvira P. Noce, aka Elvira P. Noche, Plaintiffs-Appellees, v. Doyle R. STEMEN and Marietta Stemen, Defendants-Appellants.\nNo. 8005.\nSupreme Court of New Mexico.\nOct. 24, 1966.\n\u2019 Robertson & Reynolds,' Silver City, for appellants.\nE. Forrest. Sanders] William W. Bivins] Las -Cruces, for appellees. '"
  },
  "file_name": "0071-01",
  "first_page_order": 103,
  "last_page_order": 105
}