51 Neb. 162 | Neb. | 1897
The defendant in error, Willis, by written indenture, bearing date of January 25, 1892, leased to Merrill, the plaintiff in error, lot 7, in block 6, Casebeer’s Addition (to the city of Blue Springs, for the term of one year at the agreed rate at $7 per month, payable monthly in advance, Merrill went into possession under said lease and occupied the demised premises for the period of two months, at the expiration of which time he abandoned the same without Willis' consent. In an action on the lease for the balance of the rent reserved, upon the expiration of the term, Willis recovered judgment, from which Merrill prosecutes error. The undisputed evidence is that Willis refused to accept the proffered surrender, and that on being advised by Merrill of his intention to abandon the premises at once, notified the latter that he would look to him for the rent in accordance with the terms of the lease. There was on the trial below evidence introduced tending to prove the refusal of Willis to relet the premises for the unexpired term. The court, however, held that the doctrine of avoidable consequences was not applicable to the facts of the case, and that a lessor is not required to relet for the protection of a lessee who has, without his consent and without justification, abandoned the demised premises, and which ruling presents the only question for determination at this time.
We are, by counsel for plaintiff in error, referred to Allen v. Saunders, 6 Neb., 436, as opposed to the rule asserted by the trial court. The turning point of that case was, however, not the duty of the lessor to relet, but the qualification of an instruction, otherwise satisfactory to both parties, to the effect that the plaintiff therein was
Affirmed.
