Slayton v. Jordan

Mr. Chief Justice Shepard

delivered the opinion of the Court:

No doubt the lessors could have allowed the premises to remain vacant, in which event they would have an action for the rent reserved in the lease, but they were not obliged to do so. The entry and reletting are sufficient to show an acceptance of the surrender of the lease, where, taking into consideration all the circumstances, the act is of a character-to show that the landlord has resumed possession to the exclusion of the tenant, with the intention of releasing him from his liability. Biggs v. Stueler, 93 Md. 100, 111 , 48 Atl. 727 .

In a later case it was said: “There are some authorities to the effect that a re-entry and reletting of abandoned premises by the landlord without the consent of the tenant would create a surrender, by operation of law. * * * The best approved cases, however, assert the contrary doctrine, and hold that where a tenant repudiated the lease, and abandons the demised premises, and the lessor enters and relets the property, that such a re-renting does not relieve the tenant from the payment of *425 tbe rent under the covenants of the lease.” Oldewurtel v. Wiesenfeld, 97 Md. 165, 176 , 54 Atl. 969 .

See also Hunnewell v. Bangs, 161 Mass. 132 , 36 N. E. 751 ; Auer v. Penn, 99 Pa. 370 , 44 Am. Rep. 114 ; Galey Bros. v. Kellerman, 123 Pa. 491, 496 , 16 Atl. 474 , 17 Mor. Min. Rep. 164 ; Ray v. Western Pennsylvania Natural Gas Co. 138 Pa. 576, 590 , 12 L.R.A. 290 , 21 Am. St. Rep. 922 , 20 Atl. 1065 , 17 Mor. Min. Pep. 374; Alsup v. Banks, 68 Miss. 664, 668 ; 13 L.R.A. 598 , 24 Am. St. Rep. 294 , 9 So. 895 ; Respini v. Porta, 89 Cal. 464, 466 , 23 Am. St. Rep. 488 , 26 Pac. 967 . In the last-cited case the court said: “A landlord upon a wrongful abandonment by his tenant may, if he choose, decline to meddle with the property at all, and at the end of the term sue for the rent. He is not, however, driven to this course, run the risk of damage to his property or the insolvency of his tenant. In this case the plaintiff [landlord] pursued the right course in letting the property - to Eilippini [subtenant] -x- -x- * ari¿ Ixis [landlord’s] measure of damage is the difference between the rent he was to receive and the rent actually received from the subsequent tenant, provided there has been good faith in the subsequent letting.”

See also Underhill v. Collins, 132 N. Y. 269 , 30 N. E. 576 ; Merrill v. Willis, 51 Neb. 162 , 70 N. W. 914 .

The affidavit recites that possession was taken by the plaintiff, with notice that the possession should not be understood as avoiding the lease, and that he would look to the defendant for the payment of his rent. It was a reservation of his other remedies as stipulated in the lease. Taking possession of the house and releasing it were all acts in the interest of and for the benefit of the tenant, and ought not to have the effect to discharge him of the obligation to pay his rent. It was more to his interest than the lessor’s for the latter to release the premises. Had he leased it for the same amount the tenant would have been entirely relieved; if less, he is liable for the difference. It was certainly much better for the tenant that the lessor should rent the premises and get something for them than to lock the door and wait to sue for the whole amount of the rent at the expira *426 tión of the lease. It was for the benefit of both parties, and any possible presumption that the landlord has accepted the surrender and released the tenant is rebutted by tbe notice given by the landlord. Tbe tenant should be estopped to set up bis own wrong.

It is contended by tbe defendant tbat this action is upon tbe lease which is under seal, and must therefore be in covenant.

The amount of tbe damage is rendered certain by tbe action of tbe landlord in releasing tbe property. In releasing, be bas accepted tbe new tenant and credited tbe amount of bis obligation upon tbe lessee’s contract. Tbe defendant bas not objected to tbe amount for which tbe property was released to bis subtenant, and it is to be presumed tbat tbe amount is fair and tbe best that the landlord could obtain. Consequently tbe measure of damage is tbe difference between what tbe defendant undertook to pay and what tbe landlord was able to obtain from tbe new tenant. Tbe amount of tbe demand, being tbe difference between tbe original and tbe new lease, is rendered certain, and the 73d rule governs tbe proceeding.

Tbe action is properly in assumpsit for tbe use and occupation of the premises. Tbe judgment is reversed, with costs.

Reversed.