18 Del. Ch. 220 | New York Court of Chancery | 1931
The claimants have elected to demand damages rather than rent as it falls due.
The exceptions raise first a question of law. It is—what is the rulé for measuring dámages in a case where the lessee has repudiated the lease and the lessor has refused to recognize its termination ? The general rule in such case is that the damages are to be measured by the difference between the rent stipulated in the lease and the fair rental value for the balancé of the term. Monger v. Lutterloh, 195 N. C. 274, 142 S. E. 12; Womble v. Leigh, 195 N. C. 282, 142 S. E. 17. In Bradbury v. Higginson, 162 Cal. 602, 123 P. 797, 800, the rule is stated in substantially the same way as follows: “The measure of damage would be, not the total rent reserved, but the difference between the rent to accrue and the value of the remaining portion of the term.” To the same effect are Brown v. Hayes, 92 Wash. 300, 159 P. 89; Oldfield v. Angeles Brewing Co., 62 Wash. 260, 113 P. 630, 35 L. R. A. (N. S.) 426, Ann. Cos. 1912 C, 1050. Where the lessor after abandonment of the lease by a receiver of the lessee, has re-let the premises for. the balance of the term at a lower rent, the damages provable against the receivership estate are measured by the difference between the rent stipulated
The foregoing states all the principles of law that need be noticed in disposing of the pending claims. Applying those principles to the cases in hand, the results are as follows:
First, with respect to the claim of the Wilmington Mercantile Company. In its case, the term of the lease expired last March 25th. After exercising diligent efforts, it succeeded in letting the property temporarily for show window display. It received in this way $417.50 down to March 25, 1931. The rental called for from the time of the abandonment down to that date was $2,850.00. Its damages therefore are $2,537.50. Its claim in that amount will be allowed as a general one.
Second, with respect to the claim of Wilmington Trust Company, trustee. The lease from it would expire on March 25, 1933. Notwithstanding diligent efforts in that behalf, it has been unable to find a new tenant. It claims as damages the full stipulated rental of $350.00 per month from the date of abandonment throughout the entire
There is some testimony in the record to the effect that the Wilmington Trust Company, trustee, derived some rental of temporary duration for the use of show windows for display purposes. The exact amount so received does not appear in the record. Whatever was so received should be deducted from the total damages arrived at in accordance with the foregoing. It is suggested that solicitors agree upon this amount.
Order accordingly.