Bernstein v. Seglin, No. 37216

CourtSupreme Court of Nebraska
Writing for the CourtHeard before WHITE; McCOWN
Citation184 Neb. 673,171 N.W.2d 247
PartiesHelen BERNSTEIN, Appellee, v. Nathan SEGLIN, Appellant.
Decision Date17 October 1969
Docket NumberNo. 37216

Page 247

171 N.W.2d 247
184 Neb. 673
Helen BERNSTEIN, Appellee,
v.
Nathan SEGLIN, Appellant.
No. 37216.
Supreme Court of Nebraska.
Oct. 17, 1969.

Page 248

Syllabus by the Court

1. A landlord may not unreasonably refuse to accept a qualified and suitable substitute tenant for the purpose of mitigating the damages recoverable from a tenant who has abandoned the leased premises prior to the expiration of the term.

2. In an action by the landlord to recover rental from a tenant who has abandoned the leased premises prior to the expiration of the term, the burden is on the tenant to prove that the landlord unreasonably failed to relet the premises and mitigate damages.

Marks, Clare, Hopkins & Rauth, Omaha, for appellant.

Kartman & Fike, Omaha, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

McCOWN, Justice.

This is an action for the recovery of rental on a lease. The trial court sustained a motion for a directed verdict [184 Neb. 674] and entered judgment for the plaintiff. The defendant has appealed.

The plaintiff, Helen Bernstein, as lessor, and the defendant, Nathan Seglin, as lessee, entered into a written lease of a business building in Omaha, Nebraska, in June 1961. The lease was for a term of 7 years commencing July 1, 1961, and terminating June 30, 1968. The lease provided for a basic rental of $200 per month plus 2 percent of gross sales exceeding $144,000 per year. No percentage rental was ever due and the percentage clause was inoperative at all times.

The lease prohibited assignment and subletting without the previous written consent of the landlord. The concluding portion of the assignment paragraph provided: 'Landlord agrees not to withhold his consent arbitrarily where the proposed assignee is a financially responsible and experienced retail grocer.' It was stipulated that the limitation of the type of business to a retail grocer was waived.

The defendant took possession under the lease July 1, 1961, and operated his business on the premises through January 1964. On January 31, 1964, the defendant Seglin sold his business to Bernard W. Sharon, and assigned the lease to Sharon. The assignment

Page 249

executed by the defendant and the consent to the assignment executed by the plaintiff both provided that the defendant Seglin would 'remain primarily liable to the lessor, jointly and severally with the assignee, for the payment of the rent payable by lessee for a period of 30 months from and after February 1, 1964 * * *.'

Sharon took possession of the premises February 1, 1964, and paid the rent during his 5-month occupancy. On June 30, 1964, without notice to anyone, Sharon moved out and abandoned the premises. There was no surrender of the premises nor acceptance of surrender. It is undisputed that the plaintiff was holding the defendant responsible for the rent after Sharon's departure, and that the defendant understood that fact.

[184 Neb. 675] Following Sharon's departure, both the plaintiff and the defendant advertised in newspapers, posted signs, and made other efforts to rerent the premises. Defendant's efforts to find a new tenant netted several contacts and interviews but only one definite prospect developed. This was a Mrs. Hubbell. The defendant then referred Mrs. Hubbell to the plaintiff. Defendant's wife testified: 'She (Mrs. Hubbell) was a prospect. She wanted to negotiate and was ready to sign a lease.' There was no testimony as to what kind of a lease or for what term or on what conditions Mrs. Hubbell was prepared to negotiate. The defendant and his wife both conceded that they did not know anything about Mrs....

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18 practice notes
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...Bank & Trust Co., 336 N.E.2d 833 (Ind.App.1975); Wilson v. Ruhl, 277 Md. 607, 356 A.2d 544 (1976) (by statute); Bernstein v. Seglin, 184 Neb. 673, 171 N.W.2d 247 (1969); Lefrak v. Lambert, 89 Misc.2d 197, 390 N.Y.S.2d 959 (N.Y.Cty.Ct.1976); Howard Stores Corp. v. Rayon Co., Inc., 36 A.D.2d ......
  • Harmon Cable Communications of Nebraska Ltd. Partnership v. Scope Cable Television, Inc., Nos. 88-821
    • United States
    • Supreme Court of Nebraska
    • April 19, 1991
    ...faith and reasonableness applies to situation where lessor withheld consent to proposed assignment of lease), and Bernstein v. Seglin, 184 Neb. 673, 171 N.W.2d 247 (1969) (lessor could not unreasonably refuse to accept a new tenant in mitigation of damages under a lease). Accepting a substi......
  • Hand Cut Steaks Acquisitions, Inc. v. Lone Star Steakhouse & Saloon of Neb., Inc., No. S-16-1005
    • United States
    • Supreme Court of Nebraska
    • January 19, 2018
    ...note 5.7 Brief for appellee Lone Star on cross-appeal at 17.8 See Signal Management Corp. v. Lamb, supra note 4.9 Bernstein v . Seglin , 184 Neb. 673, 677, 171 N.W.2d 247, 250 (1969).10 Hilliard v . Robertson , 253 Neb. 232, 237, 570 N.W.2d 180, 183 (1997). See, also, Bachman v. Easy Parkin......
  • Schneiker v. Gordon, No. 85SC33
    • United States
    • Colorado Supreme Court of Colorado
    • February 9, 1987
    ...Inc., 182 Conn. 444, 438 A.2d 708 (1980); Wichita Properties v. Lanterman, 6 Kan.App.2d 656, 633 P.2d 1154 (1981); Bernstein v. Seglin, 184 Neb. 673, 171 N.W.2d 247 (1969); Sommer v. Kridel, 74 N.J. 446, 378 A.2d 767 (1977); MAR-SON, Inc. v. Terwaho Enterprises, Inc., 259 N.W.2d 289 (N.D.19......
  • Request a trial to view additional results
18 cases
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...Bank & Trust Co., 336 N.E.2d 833 (Ind.App.1975); Wilson v. Ruhl, 277 Md. 607, 356 A.2d 544 (1976) (by statute); Bernstein v. Seglin, 184 Neb. 673, 171 N.W.2d 247 (1969); Lefrak v. Lambert, 89 Misc.2d 197, 390 N.Y.S.2d 959 (N.Y.Cty.Ct.1976); Howard Stores Corp. v. Rayon Co., Inc., 36 A.D.2d ......
  • Harmon Cable Communications of Nebraska Ltd. Partnership v. Scope Cable Television, Inc., Nos. 88-821
    • United States
    • Supreme Court of Nebraska
    • April 19, 1991
    ...faith and reasonableness applies to situation where lessor withheld consent to proposed assignment of lease), and Bernstein v. Seglin, 184 Neb. 673, 171 N.W.2d 247 (1969) (lessor could not unreasonably refuse to accept a new tenant in mitigation of damages under a lease). Accepting a substi......
  • Hand Cut Steaks Acquisitions, Inc. v. Lone Star Steakhouse & Saloon of Neb., Inc., No. S-16-1005
    • United States
    • Supreme Court of Nebraska
    • January 19, 2018
    ...note 5.7 Brief for appellee Lone Star on cross-appeal at 17.8 See Signal Management Corp. v. Lamb, supra note 4.9 Bernstein v . Seglin , 184 Neb. 673, 677, 171 N.W.2d 247, 250 (1969).10 Hilliard v . Robertson , 253 Neb. 232, 237, 570 N.W.2d 180, 183 (1997). See, also, Bachman v. Easy Parkin......
  • Schneiker v. Gordon, No. 85SC33
    • United States
    • Colorado Supreme Court of Colorado
    • February 9, 1987
    ...Inc., 182 Conn. 444, 438 A.2d 708 (1980); Wichita Properties v. Lanterman, 6 Kan.App.2d 656, 633 P.2d 1154 (1981); Bernstein v. Seglin, 184 Neb. 673, 171 N.W.2d 247 (1969); Sommer v. Kridel, 74 N.J. 446, 378 A.2d 767 (1977); MAR-SON, Inc. v. Terwaho Enterprises, Inc., 259 N.W.2d 289 (N.D.19......
  • Request a trial to view additional results

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