Katz v. Kenholtz

• Decision Date: 11 December 1962
• Docket Number: No. 62-69,62-69
• Citation: 147 So.2d 342
• Parties: Paul KATZ, Appellant, v. Saul I. KENHOLTZ, Appellee.
• Court: Florida District Court of Appeals

Page 342

147 So.2d 342

Paul KATZ, Appellant, v. Saul I. KENHOLTZ, Appellee.

No. 62-69.

District Court of Appeal of Florida, Third District.

Dec. 11, 1962.

Rehearing Denied Jan. 3, 1963.

Myers, Heiman & Kaplan and Eugene C. Heiman, Miami, for appellant.

Simon Englander, and Morris Berick, Miami Beach, for appellee.

Before PEARSON, TILLMAN, C. J., and HORTON and HENDRY, JJ.

HENDRY, Judge.

This is an appeal by the defendant from a final judgment entered in favor of the plaintiff in an action wherein the plaintiff, as lessor, sued the defendant, as lesses, to recover damages for an alleged breach of a lease agreement.

The complaint alleged that the defendant, Paul Katz, entered into a written lease agreement with the plaintiff, Saul Kenholtz, whereby the defendant leased certain storerooms from the plaintiff for a period of one year from September 21, 1960 to September 20, 1961 and agreed to pay the sum of $3600 in monthly installments of $300 and to maintain the premises in the same condition, order and repair as they were at the commencement of the lease.

It was further alleged that the defendant occupied the premises until he abandoned same; that at the time of the abandonment the defendant owed the plaintiff rent for the months of January, February and March and the cost of certain repairs to the building. At the time of trial the entire lease term had expired and plaintiff amended his complaint to conform to the evidence so as to claim damages from the time of the breach to the expiration of the lease, less amounts realized from renting the premises for the account of the tenant.

The record shows that the written lease sued upon recited in the body that it was a lease between Saul Kenholtz, lessor, and Key Discount Center, Inc., a Florida corporation, lessee. The lessor's copy of the lease was signed, 'Saul Kenholtz, lessor' and 'Paul Katz, lessee'. The lessee's copy showed it to have been signed, 'Keys Discount Center, Inc., Paul Katz, President'.

After the lease was executed a sign was put on the premises indicating that they were in the possession of Keys Discount Center, Inc., and business was conducted on the premises under that name with the knowledge of the plaintiff. However, it was the plaintiff's contention that he always considered Paul Katz to be the lessee and was not concerned with the name of the business he operated on the premises.

Soon after the premises were abandoned, the plaintiff served on the defendant and Keys Discount Center, Inc., a statutory three day notice to pay rent or vacate. Immediately thereafter the keys were delivered to the plaintiff. A letter was sent by the plaintiff's attorney to the defendant acknowledging receipt of the keys and advising him in part as follows:

'On February 22, we received from your attorney, keys to the premises. Under paragraph sixth of the lease, we are endeavoring to relet the premises, under the terms therein contained. Until Mr. Kenholtz is successful in reletting, we shall hold you liable for the rent under the terms of the lease. If successful in reletting and there is a dificiency, Mr. Kenholtz will hold you liable for the deficiency.'

The plaintiff was only able to rent the premises for a few weeks, and credit therefor was given to the defendant.

In his answer defendant denied that the plaintiff rented the premises to him, individually, and stated that he executed the lease solely in his capacity as president of the Keys Discount Center, Inc., a Florida corporation. The answer further denied that he owed any rent except that which was due for the month of January because the permises and the keys thereto had been turned over to the plaintiff-landlord at that time pursuant to his notice to the defendant to pay the rent or vacate within three days.

The cause went to trial, without a jury, on the issues thus made by the pleadings and resulted in a final judgment being entered in favor of the plaintiff in the sum of $1,391.68 for rent, $65.75 for interest, plus $160 for repairs.

The plaintiff, during the trial, testified to the effect that he knew that the corporation was named in the body of the lease as lessee but he had told Katz that he would not deal with the corporation and that it would have to be leased by Katz individually. The defendant denied any such discussion.

One of the appellant's contentions is that the appellee was not entitled to recover rental for the unexpired term of the lease. The appellant argues that the giving of the statutory three day notice to pay rent or vacate and the acceptance of the return of the keys to the premises clearly showed an election on the part of the landlord to terminate the lease and resume possession for his own use.

The appellee admits that possession was re-taken by him in the manner set forth by the appellant, but vigorously denies that he took the keys and possession for any purpose other than for renting it for the account of the tenant, as he had a right to do under the lease ¹ and under the settled law of our state.

As was said by our Supreme Court in Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346:

' It seems to be reasonably well settled by the weight of authority that upon the breach, abandonment or renunciation of a lease by the lessee before the expiration of the term the lessor has the choice of one of three courses of action: He may treat the lease as terminated and resume possession of the premises, thereafter using the same exclusively as his own for his own purposes; or, he may retake possession of the premises for the account of the tenant, holding the tenant in general damages for the difference between the rentals stipulated to be paid and what, in good faith, the...