Yates v. Reid

SHENK, J.

The plaintiff has appealed from that portion of the judgment that he take nothing from the defendants on his complaint for damages alleged to have been suffered by reason of the defendants’ abandonment of a lease. The defendants have appealed from that portion of the judgment that they take nothing on their cross-complaint. The latter appeal has not been prosecuted and will be dismissed.

The plaintiff leased a tourist resort to the defendants for a term beginning October 15, 1945, and ending January 14, 1950. The defendants agreed to pay a rental of $300 per month for the first three months and $450 per month thereafter. The defendants took possession and paid the agreed rental until June 15,1947, when they vacated the premises and ceased paying rent. The plaintiff went into possession and operated the resort until April 7, 1948, when he leased it to a new tenant for a rental of $300 per month. On that date he gave written notice to the defendants that he had relet the premises and was demanding from them $150 per month, the difference between the defendants’ and the new tenant’s rental payments. On May 20, 1948, the plaintiff gave written notice to the defendants declaring that their lease was terminated and again demanding payment of the deficiency resulting under the new lease. These two written notices were the only communications between the plaintiff and the defendants following the abandonment.

The trial court held that the abandonment of the premises by the defendants with the subsequent reentry by the plaintiff and reletting to a new tenant amounted to a surrender of the lease by operation of law, which relieved the defendants of their obligations under the lease. '

[385]

The plaintiff contends that his actions were not an acceptance of a surrender by the defendants, since the lease expressly authorized him to reenter and to relet. He relies upon a provision in the lease, which reads:

“Should any of the rent reserved be due and unpaid, . . . or should the lessee vacate or abandon said property, . . . the Lessor may, at its option, and without demand or notice ¿f any kind whatsoever, re-enter and take possession of said property and remove all persons therefrom; and should the Lessor elect to re-enter and take possession of said property . . ., said Lessor may, at his option, either terminate this lease and recover from the Lessee all damages caused by the breach hereof of the Lessee, . . .; of, said Lessor may relet said property or any part thereof, .... No re-entry of said property by the Lessor, as herein provided, shall be construed as an election on his part to terminate this lease, unless written notice to that effect is delivered to the Lessee ...”