Gordon v. Consolidated Sun Ray, Inc.
| Decision Date | 17 August 1965 |
| Docket Number | No. 44052,44052 |
| Citation | 404 P.2d 949,195 Kan. 341 |
| Parties | Bertha GORDON, Executor of the Estate of George Gordon, Deceased, substituted for George Gordon, Appellant, v. CONSOLIDATED SUN RAY, INC., a Corporation (Formerly Consolidated Retail Stores, Inc.), and Berkson's, Inc., a Corporation, Appellees. |
| Court | Kansas Supreme Court |
The record is examined in an appeal where the judgment was against George Gordon, plaintiff, on all cases of action in plaintiff's amended and supplemental petition except the sixteenth cause of action in the amended petition seeking recovery of real estate commission and expenses in the re-leasing of the premises to Walgreen's. The original George Gordon, plaintiff, has been properly substituted for, by his executor. All as more fully reflected in the opinion.
1. The action sought recovery of the difference between rentals after destruction of the premises by fire and the abandonment of the lease by Consolidated and Berkson's up to Walgreen's taking possession and paying full rent under its lease plus accrued taxes, insurance premiums and expense of reletting the premises in addition to what was recovered in the first case that was before this court. Gordon v. Consolidated Sun Ray, Inc., 186 Kan. 772, 352 P.2d 951.
It is held: that the trial court's judgment denying George's claim for reconstructing the premises and the allowance of his claim for real estate commission as an expense of reletting the premises is affirmed but the trial court's holding that George accepted surrender of Consolidated and Berkson's lease is reversed.
2. Where a tenant, under contract to pay rent on real property, abandons the property and notifies the landlord of that abandonment, it is the landlord's duty to make a reasonable effort to secure a new tenant and obtain rent before he can recover from the old tenant under the contract so as to lessen the injury.
3. The institution of an action to recover rent for the period between the time the premises were adandoned by the tenant and the time when they were relet establishes the fact that the landlord's taking possession was for the purpose of reletting the premises in order to mitigate damages, rather than for the purpose of accepting the surrender and terminating the lease.
4. Where the tenant abandons the premises and ceases paying rent the burden of proving the acceptance of the surrender of the lease is on the tenant. If a tenant alleges acceptance of surrender of the lease by the landlord, he must establish unequivocal manifestation of consent on the part of the landlord to termination of the landlord and tenant relation.
Maurice D. Freidberg, Topeka, argued the cause, and Byron M. Gray and Charles L. Davis, Jr., Topeka, were with him on the brief, for appellant.
James E. Smith, Topeka, argued the cause, and Bernard M. Borish, Philadelphia, Pa., was with him on the brief, for appellee.
The following opinion was prepared by Mr. Justice ROBB and approved by the court during his lifetime:
This is an appeal from the trial court's order made March 24, 1964, and entered April 6, 1964. The judgment was against plaintiff on all causes of action in plaintiff's amended and supplemental petition except the sixteenth cause of action in the amended petition seeking recovery of real estate commission and expenses in the re-leasing of the premises to Walgreen's.
George Gordon, the plaintiff died on February 24, 1965; Bertha Gordon, his wife, was appointed and qualified, pursuant to the provisions of George's will, as executor of George's estate, and finally, on March 15, 1965, this court allowed her motion to be substituted as party plaintiff. Further, the action sought recovery of the difference between rentals after destruction of the premises by fire and the abandonment of the lease by Consolidated and Berkson's up to Walgreen's taking possession and paying full rent under its lease, plus accrued taxes, insurance premiums and expense of reletting the premises.
We should state that all of the above was also required of George and Bertha in a ninety-nine year lease (May 1, 1931, to April 30, 2030) with Louise V. Stover, the landowner, and Consolidated and Berkson's had full and complete knowledge thereof.
Hereinafter plaintiff will be referred to as George, the executor as Bertha, the defendants as Consolidated and Berkson's, and Louise v. Stover as the landowner.
This is the second appearance of this matter, the first being the case of Gordon v. Consolidated Sun Ray, Inc., 186 Kan. 772, 352 P.2d 951, and to avoid repetition that opinion insofar as pertinent is made a part hereof and will be designated when referred to herein as the first case, which was done at times by the parties herein.
Our preliminary facts are fully set out in the first case beginning on page 772, 352 P.2d 951. They show the twenty-five year lease, from May 1, 1956, to April 30, 1981, providing $30,000 annual rent payable in $2,500 monthly installments, between George, as lessor, and Consolidated and Berkson's as lessees. Consolidated and Berkson's were also obligated to pay insurance, taxes and in case of fire, to replace the destroyed premises, and fire would not terminate the lease.
On March 17, 1959, a fire rendered the premises untenantable and in June 1959, Consolidated and Berkson's vacated and abandoned the premises and failed and refused to comply with any of their duties under the lease until forced to do so by court action. The first case ended with judgment for plaintiff and was affirmed on appeal.
During the pendency of the first case and on February 24, 1960, George settled with Consolidated and Berkson's for the sum of $72,000 so far as their duty to pay for reconstruction of the premises was concerned but it was further agreed such settlement would not prejudice or effect any other claims of the parties in the case, and on May 20, 1960, the parties advised the court of the settlement, and the sixth cause of action was dismissed with prejudice.
After Consolidated and Berkson's abandoned the premises and George had notified them in writing that he was not accepting a surrender of the lease but was holding them liable, George took steps to mitigate the damage by notifying realtors in Topeka and Kansas City that the premises were available for re-relasing, and in April, 1960, George relet the premises to Walgreen Co., an Illinois corporation, for a term which extended through the unexpired term of the Consolidated and Berkson's lease. It was stipulated that the lease with Walgreen's was made after George had considered all other proposals and believed that Walgreen's offer would result in the greatest mitigation of damages flowing from Consolidated and Berkson's breach of their lease. The rental payable under Walgreen's lease greatly mitigated the liability of Consolidated and Berkson's under their abandoned lease.
In February, 1961, George brought a second action against Consolidated and Berkson's to recover the rents due under their abandoned lease and recovered the accrued monthly payments through February, 1961, the accrued taxes, and insurance premiums. Judgment was rendered in George's favor and no appeal was taken therefrom.
In neither the first nor the second mentioned case did Consolidated and Berkson's assert as a defense that George had accepted their surrender and abandonment of the original lease.
On March 12, 1962, the third and instant action was filed, and the petition was amended August 10, 1962. In this petition George sought to recover the difference between the rental provided in the lease between him and Consolidated and Berkson's and the rental received by him from Walgreen's on reletting the premises subsequent to the second action; accrued taxes and insurance premiums and expenses of reletting the premises. For the first time, after a complete settlement was made between George and Consolidated and Berkson's of their sixth cause of action in the first suit, George made a claim for a portion of the expenses of rebuilding the...
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