146 A. 525 | N.H. | 1929
The defendant contends that all liability for rent or for damages occasioned by the breach of the executory portion of the lease was terminated when the plaintiff resumed possession and control of the premises, since such conduct on the plaintiff's part effected a surrender of the lease by operation of law. The statement in the agreement of facts that there was no waiver is interpreted to mean that the plaintiff did not in fact accept the defendant's *95
relinquishment of possession as a surrender. Where there is such acceptance the tenant is not liable for subsequent rent. Davis v. George,
So far as notice to the defendant is concerned, the immediate institution of these proceedings was sufficient information of the plaintiff's insistence on liability for breach of covenant, even though it did not constitute notice of an intention to relet.
"The question whether, upon the tenant's abandonment of the premises, the landlord may lease them to another without thereby causing a surrender of the lease, and consequent termination of the tenant's liability for rent, is one of great practical interest, upon which the authorities are not in accord. There are a number of decisions to the effect that the landlord may so `relet' to another and still hold the former tenant. By others it is regarded as necessary, in order that such reletting shall not effect a surrender, that the landlord, before making the new lease, inform the tenant that he is about to do so on the latter's account, that is, that the purpose is to reduce, but not necessarily to extinguish, the latter's liability for rent. By still another line of decisions it is adjudged that the reletting will terminate the liabilities under the previous lease, without any suggestion being made that a notice to the previous tenant would prevent this result." 2 Tiff., L. T. 1338, 1339.
A few of the authorities supporting the first view are here cited: Respini v. Porta,
It is frequently said that the rule that the tenant's liability is terminated by the reletting as a matter of law, irrespective of notice, is supported by the better logic, but that strong practical considerations justify the adoption of the rule generally followed. Of course it cannot be denied that where the landlord relets he performs an act repugnant to the continuance of the former tenancy (Felker v. Richardson,
In any case involving a breach of contract the plaintiff must make reasonable efforts to curtail his loss. Lee v. Dow,
Clarence Milton Updegraff in 38 Harv. Law Rev. 64, 79, declares that although the new tenancy is inconsistent with the old, it does not follow that it is also inconsistent with the contractual obligation in the lease. An analogy is found to exist in the ordinary case of assignment where both the lessee and his assignee are liable upon the covenant to pay rent. Machinist v. Koorkanian,
The rule that where a purchaser wrongfully refuses to accept goods the seller may elect to regard the sale at an end and sue for the breach of contract is recognized in this jurisdiction. Bates St. Shirt Co. v. Place,
"The same principle applies to these chattel interests which applies to goods, bargained for and not taken. The vendor is not obliged to abandon possession and throw them away. He may resell and credit the proceeds on the contract. This is for the benefit of the vendee, as in this case the re-letting was pro tanto for the benefit of the lessees." Meyer v. Smith,
This court has recently held that where the purchaser of a motor truck has failed to make payments in accordance with the terms of the conditional sale, the seller may take back the truck and recover the balance due on the purchase price, after having credited the purchaser with the fair value of the truck or the amount obtained from resale, according as the one exceeds the other. Mercier v. Company, ante, 59. A like credit would be allowed in the present case if the warehouse in question had a rental value and the parties had not agreed on the question of damages. Monger v. Lutterloh,
It is said in the Mercier case that repossession of the property and suit for the unpaid installments are not inharmonious and should not bar each other. Although notice was given the vendee that the truck would be resold (Briefs and Cases, No. 2252), the decision does not turn on that fact. Neither should recovery here depend on the defendant's knowledge that the premises were to be relet for his benefit. Guy v. Gould,
Since in the present case it is agreed that the plaintiff did not waive his rights, or in other words that he did not as a matter of fact accept the defendant's abandonment of the warehouse as a surrender of the lease, it follows that the defendant's liability was not terminated by operation of law. The judgment is therefore affirmed.
Exceptions overruled.
All concurred. *98