Respini v. Porta

Paterson, J. — On November 1, 1884, the plaintiff leased certain real and personal property to the defendant for the term of five years at an annual rental of two thousand four hundred dollars, payable quarterly in advance. The defendant entered into possession of the lands and held the same, and paid the rent regularly for one year. On November 2, 1885, plaintiff demanded payment of the rent due for the first quarter of the second year, but the defendant replied that he had no more money, could not pay the rent, and was going to leave the place and give up everything. Plaintiff answered, that he had not come to take possession of the property, but to ask for his rent, but if the defendant -was going to abandon the property, he would take possession of the I same to protect it. The defendant thereupon surrendered possession of the property to the plaintiff. A few days after the second day of November, 1885, the plaintiff leased the property to one Filippini at a rental of two thousand dollars per year, and the latter has ever since held possession and paid rent at that rate.

This action was brought by the plaintiff to recover the sum of six -hundred dollars, being the amount claimed to be due him from defendant on November 1,1885, together with interest thereon at the rate of seven per cent per annum from that date.

The court below held that the defendant was entitled to a credit of five hundred dollars, the amount the plaintiff had received from Filippini.

It was properly held by the court below' that the abandonment of the premises to the plaintiff, and the taking possession by him against his wish, and the subsequent [466]letting of the property to another tenant, was not a surrender and termination of the lease under the circumstances. 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, and run the risk of damage to his property or the insolvency of his tenant.

ij- In this case the plaintiff pursued the right course in :j letting the property to Filippini, and we presume that i he procured the highest rent that could be obtained. But we cannot support him in his contention that because the defendant, against his (plaintiff’s) wishes and without right, abandoned the property, he is entitled to recover the full amount provided for by the terms of the lease to defendant. Our code provides that “for the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom.” (Oiv. Code, sec. 3300.) We think plaintiff’s rights are measured by the provisions of this section, and not by sec; tion 3302 of the Civil Code. In cases of this kind the landlord is not entitled to recover for rent of the premises after the abandonment of them by the defendant, but has compensation for the injury, and his 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. (Gear on Landlord and Tenant, secs. 128, 176; Ledoux v. Jones, 20 La. Ann. 540; Bloomer v. Merrill, 29 How. Pr. 259; Randall v. Thompson, 1 Tex. App. 1102; Auer v. State, 99 Pa. St. 370; 44 Am. Rep. 114; Field on Damages, 523.)