Carpenter v. Wisniewski
| Decision Date | 25 April 1966 |
| Docket Number | No. 20362,No. 1,20362,1 |
| Citation | 139 Ind.App. 325,215 N.E.2d 882 |
| Parties | Meade B. CARPENTER and Frieda C. Carpenter, Appellants, v. Peter Richard WISNIEWSKI and Regina Wisniewski, Appellees |
| Court | Indiana Appellate Court |
John W. Niemiec, Roland Obenchain, Jr., South Bend, for appellants.
George Sands, William A. Hosinski, South Bend, for appellees.
The extent to which a landlord must go to re-let premises when a tenant vacates before the term has ended, is involved here.
Plaintiff-appellees owned a building which was leased to appellants for the operation of a drug store. The terms of the written lease provided:
[139 INDAPP 327] Eight months before the lease expired appellants vacated the premises. This action was brought against appellants (as defendants) and there was a recovery for rent and attorney's fees. The trial was before the court and the judge entered special findings.
The issues below, and as presented here, involve law and facts which relate primarily to the court's special finding No. 5 which we set out:
Appellants argue that appellees had the burden of proof to establish due diligence in re-letting and they cite Waffle v. Ireland (1927), 86 Ind.App. 119, 122, 155 N.E. 513. Also it is claimed by appellants that the court erred in refusing to find specially on the issue of surrender of the lease by operation of law. It is finally contended that the court erred in assessing the amount of recovery in that the amount assessed is too large. Our discussion of these points will follow in the order presented above.
As a general statement of law, our court said in Waffle v. Irland, supra, that the burden of proof was on the landlord to prove due diligence in re-letting. Appellants also assert that there is an absolute duty imposed on the landlord and that the words 'the same shall be re-let,' where they are used in the lease, are mandatory in character rather than permissive. Our thoughts on this subject are not in conflict with those generalities.
[139 INDAPP 328] But here, other important language in the lease must be given some meaning. That contract also provided that the premises were to be occupied for retail drug business and no other purpose whatever. In the re-letting clause set out above it was provided that the landlords shall re-let for such rent and upon such terms as said first party may see fit. The lease included an express promise to pay the total sum of $16,800 as rent in monthly installments for a five year term. It prohibited use of the property for any purpose that would increase the rate of insurance. The tenants were prohibited from sub-letting without written permission of the landlords. We think all provisions must be read and considered together and the burden of proof finally resting on the landlords is to show that they used due diligence to obtain a new tenant in keeping with the provisions of the particular lease.
The landlords (appellees) argue that they were only required to re-let for use by a drug store. There is some merit to that assertion since the tenants under this lease could only use and occupy the premises 'for retail drug business and drug store and no other purpose whatever.' Construction other than that urged by appellees might permit the tenants to indirectly violate the provision quoted, by vacating the premises and offering to re-let it for some other purpose.
We are inclined to the views found outlined in 115 A.L.R. 206, 207, that where the lease contains a provision in case of abandonment by the tenant before the end of the term, there is a duty on the part of the lessor to endeavor to re-let the premises and to so mitigate the damages. But the landlord is not required to alter or increase his obligations, as by extending the length of the lease term to the new tenant or by renting for a different use than provided in the original lease where such lease is specific as to use. We hold, with the authorities in the above annotation, that [139 INDAPP 329] the lessor is required to use such diligence as would be exercised by a reasonably prudent man under similar circumstances. This is a question for the trier of the facts. Proof of such diligence is the burden cast on the landlord by the re-letting clause.
The evidence here, indicated that the landlords after the tenants vacated the premises, advertised through the newspapers and by a sign in the window of the building and also employed a realtor. They had inquiries which they said were for short terms and included 'a cleaning outfit' which they considered to be a fire hazard. They were not approached by any prospective drug store operators. Appellee, Peter Wisniewski, testified that as a result of ads and the placing of a sign in the window, he had been unable to rent the store; that there was no one in there at the time of the trial; and that there had been no one in there after the property was vacated up to the time of the trial.
A doctor inquired of the landlords about the rental, having been directed by appellants. Appellees say that in the discussion they offered to rent the upstairs rooms to the doctor but told him that the building was not built for a doctor's office.
The doctor testified about his inquiry, and said a contractor informed him the cost of remodeling the...
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...S.E.2d 703 (App.1964) ("reasonable effort" of landlord by showing the apartment to all prospective tenants); Carpenter v. Wisniewski, 139 Ind.App. 325, 215 N.E.2d 882 (App.1966) (duty satisfied where landlord advertised the premises through a newspaper, placed a sign in the window, and empl......
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