Salvation Army v. Daily Telegram

TAPPAAN, J.,

pro

tem.

The plaintiff had judgment in the court below and the defendant appeals therefrom. The action was one for the recovery of the monthly installments of rent reserved to be paid to plaintiff under the terms of a ten-year lease it had with defendant. By a supplemental complaint, filed by stipulation of the parties to the action,

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plaintiff added to its demand installments of rent and taxes which had accrued since the amended complaint was filed herein. At the time of trial defendant’s counsel stated that its defense would be rested solely on the allegations of a certain amendment to its pleading, which amendment read as follows: “For a further and affirmative defense to this action defendant alleges, that after the defendant had quit the possession of said leased property as alleged aforesaid, the plaintiff notified the defendant that it would take possession of said property, would re-lease the same, and would hold the defendant liable for any difference between the rents received from such re-leasing of the premises and the amount stipulated to be paid by the defendant under the terms and provisions of said lease.”

The facts, as disclosed by the record here, are as follows: Appellant had, for some years, been a tenant of respondent, under the terms of a ten-year lease. On May 1, 1927, appellant paid to respondent the charges then due under the lease and attempted to surrender up the premises to respondent. As to just what was said and done at this time, the testimony of the witnesses is in conflict. Appellant’s witnesses testified to the effect that respondent’s representative stated “the only thing he could do, and the best thing that he could do, would be to accept the premises back—the occupancy of the premises, that they should take possession, and that they should rent the premises, and then hold The Telegram Company responsible for any difference. ...” Respondent’s witnesses flatly contradict this testimony, and, further, deny that respondent ever took possession of the premises in question or collected any rent therefrom. Under date of June 1, 1927, the “Property Secretary” of respondent wrote appellant as follows: “We desire to inform you herewith that we cannot accept such notice as absolving you from your liability under the lease entered into between us. We shall hold you responsible for any losses, financial or otherwise, that may accrue to us up to the date of expiration of the forementioned lease.