Manley v. Kellar
| Decision Date | 31 December 1952 |
| Docket Number | No. 1084,1084 |
| Citation | 8 Terry 511,47 Del. 511,94 A.2d 219 |
| Parties | , 47 Del. 511 MANLEY v. KELLAR. Civil Action, 1951. |
| Court | Delaware Superior Court |
Joseph A. L. Errigo and John Merwin Bader, Wilmington, for plaintiff.
Stephen E. Hamilton, Jr., Wilmington, for defendant.
This is an action by the plaintiff to recover rent under the provisions of a written lease. On the 7th day of September, 1949, the plaintiff, acting through Olga Morrison, his attorney in fact, leased in writing to the defendant a certain first floor apartment in Fairlawn County in the State of New Jersey. The term of the lease commenced on October 1, 1949, and ended on September 30, 1951. The rent reserved was the sum of $1266, payable in monthly installments of $105.50 each.
The lease contained certain covenants: (1) that the defendant would not sublet the premises nor assign said lease without the written consent of the plaintiff; (2) that the plaintiff may re-enter and re-let the apartment, if the defendant should vacate the same, for the balance of the term of the lease at the best rent that he can obtain for the account of the defendant who shall make good any deficiency.
The defendant entered into possession of the apartment and lived therein until November 1, 1950, when he vacated the same. On March 15, 1951, the plaintiff re-entered and re-let the apartment at the monthly rental of $105.50 for the remaining six and one-half months of the term of the lease, or until September 30, 1951.
At the time of the execution of the lease the defendant deposited with the plaintiff the sum of $105.50 as security for the faithful performance of his obligations thereunder, and on November 1, 1950, paid to the plaintiff the sum of $10 which the plaintiff credited to the rent account of the defendant, along with the $105.50 security deposit aforesaid. In re-letting the apartment the plaintiff incurred a real estate brokerage fee in the amount of $34.29.
The plaintiff's claim more particularly stated is as follows:
Eleven months unexpired term
Nov. 1, 1950 to Sept. 30, 1951 $1160.50
Credit by reason of
re-letting from Mar
15, 1951 to Oct. 30
'51 $685.75
Credit security deposit 105.50
Credit by check 10.00 801.25
------- --------
$ 359.25
Plus real estate brokerage fee
for re-letting 34.29
--------
Balance due and demanded $ 393.54
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The defendant admits the lease and concedes that he vacated the apartment on November 1, 1950, without first having obtained the written consent of the plaintiff, but he denies liability for any portion of rent after November 1, 1950, and until September 30, 1951, the end of the term. The defendant's position in this respect is predicated upon his assertion that he had a tenant ready and willing to pay $95 per month to the plaintiff for the apartment for the unexpired term; that is, from November 1, 1950, down to and including September 30, 1951, which together with the sum of $105.50 theretofore deposited as security money with the plaintiff, plus $10 that the defendant paid to the plaintiff on November 1, 1950, would have paid all the rent money due to the plaintiff under the lease up to and including the end of the term thereof.
The defendant argues that by reason of the plaintiff's refusal to accept the tenant as found by him, together with the mode of payment of the balance of the rent as suggested by him, that the plaintiff failed to mitigate his damages which he was duty bound to do and thereby surrendered any claim for rent against him covering the unexpired term of the lease from November 1, 1950, until September 30, 1951.
The defendant's position more particularly stated is as follows:
Rent from tenant produced by
defendant for unexpired term
from November 1, 1950 to September
30, 1951 @ $95.00 per
month $1045.00
Security Deposit by Defendant 105.50
By Check 10.00
--------
Representing rent in full under
lease.
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