Enoch C. Richards Co. v. Libby

• Citation: 10 A.2d 609
• Parties: ENOCH C. RICHARDS CO. v. LIBBY.
• Decision Date: 23 January 1940
• Court: Supreme Judicial Court of Maine (US)

10 A.2d 609

ENOCH C. RICHARDS CO.

v. LIBBY.

Supreme Judicial Court of Maine.

Jan. 23, 1940.

Exceptions from Superior Court, Cumberland County.

On exceptions.

Action by Enoch C. Richards Company against Harry C. Libby, in his capacity as the duly appointed executor of the last will and testament of Julia E. Hodsdon, deceased, to recover rent. Judgment for plaintiff, and defendant brings exceptions.

Exceptions sustained.

Argued before BARNES, C. J., and STURGIS, THAXTER, HUDSON, and MANSER, JJ.

Philip A. Hanson, of Cambridge, Mass., for plaintiff.

Harry C. Libby, of Portland, for defendant.

THAXTER, Justice.

This action brought against the executor of the estate of Julia E. Hodsdon was tried before a justice of the Superior Court without the intervention of a jury. The right to except was reserved.

The plaintiff seeks to recover the sum of $400 for rent of an apartment for a period of eight months from April 16, 1937, to December 15, 1937 at $50 per month. There are also items in the account amounting to $8.65 for gas and electricity furnished and for damage done to the apartment. The presiding justice found that judgment should be entered for the plaintiff for $403.65. The case is before this court on ten exceptions of the defendant, some of which are to certain findings made by the court, others to the refusal of requests for rulings. All of the exceptions are without merit but one which we shall consider. There is no dispute as to the facts.

The plaintiff owned and operated an apartment house located at 419 Cumberland Avenue in Portland. The defendant's testatrix through her agent entered into negotiations to rent an apartment in this building. The one which she wanted #51 was occupied but was soon to become vacant. Until it should be available it was agreed orally that the prospective tenant might occupy apartment #2 at a rental of $50 per month. On May 15th, when the other apartment became available, the tenant vacated apartment #2 without notice and left the building for good. The presiding justice found that "the occupancy of apartment No. 2 was upon a verbal agreement for an indefinite period upon a monthly payment of rent;" and "that it was a tenancy at will and could be terminated only by the statutory notice or by mutual consent." This was a correct description of the relationship of the parties. When the tenant went the key appears to have been left on the office desk and was taken by Mrs. Richards, the agent in charge of the building with whom all the negotiations had taken place. There is no doubt that Mrs. Richards knew when Mrs. Hodsdon left that she intended to give up the apartment. Mrs. Richards used the key to enter the apartment, which she cleaned and put into condition for a new tenant; and from time to time she showed it to prospective tenants. Apartment #51 was rented in October and apartment #2 December 1st. The plaintiff seeks to recover rent for apartment #2 from April 16th to December 15th.

The ruling to which the defendant takes exception is as follows in the words of the presiding justice:

"At the termination of the occupancy by the defendant's deceased on May 14th the key of apartment No. 2 was left at the plaintiff's office in the building where the apartments were located. The plaintiff used the key to enter and put the apartment into condition for a new tenant, and showed the apartment to prospective tenants. It was let to a new tenant on December 1st.

"I find that the plaintiff did not exercise dominion over the premises when it endeavored to obtain a new tenant, except as was reasonable and necessary to prevent damages from accumulating."

This ruling we think was error. We are aware of the well settled principle that findings of fact by the justice hearing the case are conclusive if there is any evidence to support them. In the case before us, however, the facts are not in dispute and the only inference which can be drawn from them does not in our opinion support the ruling below. Under such circumstances there is error in law to correct which exceptions will lie. Chabot & Richard Company v. Chabot, 109 Me. 403, 84 A. 892.

The ruling that the landlord did not, by taking the key, by entering the apartment, and by offering it to prospective tenants, accept the surrender of it by the defendant's testatrix is based on no facts or inferences therefrom in the evidence but rather on the assumption of law that such acts were "necessary to prevent damages from accumulating." So long, however, as a tenancy exists the landlord may collect rent in full regardless of actual occupancy of the premises by the tenant. Withers v. Larrabee, 48 Me. 570; Rollins v. Moody, 72 Me. 135. Such being the case it must follow that, where there is a wrongful abandonment of premises by a tenant and a refusal to pay rent, the landlord may at his election permit them to remain vacant, refuse to recognize the attempted surrender by the tenant, and bring suit to collect the rent as it comes due. The tenant can not by such action cast a burden on the landlord to find someone to take his place. Such is the overwhelming weight of authority. Boardman Realty Co. v. Carlin, 82 Conn. 413, 74 A. 682; Patterson v. Emerich, 21 Ind.App. 614, 52 N.E. 1012; Haycock v. Johnston, 81 Minn. 49, 83 N.W. 494, 1118; Muller v. Beck, 94 N.J.L. 311, 110 A. 831; Underhill v. Collins, 132 N.Y. 269, 30 N.E. 576; Goldman v. Broyles, 1911, Tex.Civ. App., 141 S.W. 283; 14 Ann.Cas. 1088 Note; 40 A.L.R. 190 Note; McAdam on Landlord and Tenant, 5 ed. p. 1375.

The acts of the landlord can not, therefore, be explained on the theory that there was any obligation on its part to mitigate damages, and there is no...