K and C Associates v. Airborne Freight Corp., 5538-I

• Decision Date: 13 July 1978
• Docket Number: No. 5538-I,5538-I
• Citation: 581 P.2d 1082,20 Wn.App. 653
• Court: Washington Court of Appeals
• Parties: K & C ASSOCIATES, a partnership, Respondent, v. AIRBORNE FREIGHT CORPORATION, a corporation, Appellant.

Page 653

20 Wn.App. 653

581 P.2d 1082

K & C ASSOCIATES, a partnership, Respondent, v. AIRBORNE FREIGHT CORPORATION, a corporation, Appellant.

No. 5538-I.

Court of Appeals of Washington,Division 1.

July 13, 1978.

Lycette, Diamond & Sylvester, John W. Hempelmann, Seattle, for appellant.

Reed, McClure, Moceri & Thonn, P. S., William R. Hickman, Richard C. Reed, Anne Bradley, Seattle, for respondent.

FARRIS, Chief Judge.

Airborne Freight Corporation appeals from a judgment awarding K & C Associates (its former landlord) the difference between Airborne's unpaid rent after it vacated the leased premises and the rental received by K & C from replacement tenants. We reverse.

In January of 1974, Airborne orally advised K & C that it would vacate its leasehold space the following summer and would cooperate in efforts to obtain replacement tenants. The seven separate lease agreements by which Airborne leased space had a termination date of February 28, 1975. In February 1974, Airborne entered into a lease which obligated its new landlord to assume and pay all Airborne's remaining rental to K & C. Airborne advised K & C of its new landlord's assumption in a March letter confirming its intent to prematurely vacate.

K & C reached tentative agreement with two potential replacement tenants in July. It sent a "Release and Relinquishment of Space" agreement to Airborne under a cover letter conditioning acceptance of the new tenants on execution of this agreement. The agreement provided inter alia that Airborne would pay any deficiencies arising from the reletting of the former's space. Airborne and its new landlord rejected the offer and Airborne refused to sign the agreement.

In August, K & C and the two replacement tenants entered into 5-year leases for Airborne's space with smaller monthly payments than had been paid by Airborne. On October 14, Airborne vacated the premises and thereafter returned its keys.

Airborne's lease with K & C provided that in the event of breach, K & C could re-enter the premises by giving 3 days' written notice and that, in the event of such re-entry, Airborne would be liable for any rental deficiency. Without notice, K & C re-entered the premises immediately following vacation. This action was brought thereafter to recover $20,728.38, the difference between the amount of rental K & C would have received under its lease with Airborne and the amount it received from its new tenants during the unexpired portion of Airborne's lease.

K & C argued that Airborne had abandoned the lease and that, accordingly, it, as landlord, had a right to re-enter the premises, relet them and recover the deficiency rental from K & C. It also argued that because of the abandonment, it was not required to give the 3-day notice dictated by the lease.

Airborne contended that it had not relinquished the legal right to possess the leased premises, that it was current in its rental payments to the date of re-entry, and that K & C's re-entry without the 3-day notice and its subsequent reletting of the premises to...