Mariani Air Products Co. v. Gill's Tire Market

• Decision Date: 09 April 1973
• Docket Number: No. 12992,12992
• Citation: 29 Utah 2d 291,508 P.2d 808
• Parties: d 291 MARIANI AIR PRODUCTS COMPANY, a corporation, Plaintiff and Respondent, v. GILL'S TIRE MARKET, Defendant and Appellant.
• Court: Utah Supreme Court

Page 808

508 P.2d 808

29 Utah 2d 291

MARIANI AIR PRODUCTS COMPANY, a corporation, Plaintiff and Respondent, v. GILL'S TIRE MARKET, Defendant and Appellant.

No. 12992.

Supreme Court of Utah.

April 9, 1973.

Dwight L. King, Salt Lake City, for defendant and appellant.

Nathan J. Fullmer, Salt Lake City, for plaintiff and respondent.

CALLISTER, Chief Justice.

Plaintiff initiated this action to recover the rental payments for the remaining six months of the term under a written lease of certain real property. The matter was tried by the court, and plaintiff was awarded judgment; defendant appeals therefrom.

Defendant, lessee, leased the premises from the plaintiff, lessor, for a term of eighteen months, beginning March 20, 1970, at a rental of $300 per month. Defendant proceeded to conduct a retail and wholesale tire business on the premises. Sometime in November 1970, defendant ceased the retail operation but continued to use the premises as a warehouse. On January 28, 1971, plaintiff's general manager met defendant's agent at the premises to inspect damages done to the walls in the front office area where the retail operations had previously been conducted. The damage had been caused by water leaking from an evaporative cooler located on the roof. Defendant had neglected to turn off the water line and to drain the cooler; the water had frozen and broken the fittings at the bottom of the tank, causing the water to leak into the building. Plaintiff's manager had the cooler repaired on March 4, 1971; thereafter he contacted defendant's agent to arrange for the painting of the damaged walls. Defendant's agent declined the offer, stating that the building had to be secured after hours.

Defendant did not submit the March rental payment or any thereafter. Plaintiff's president attempted to contact defendant's president on several occasions; he finally found him in his office on April 28, 1971. The two visited the premises to inspect the damage. Plaintiff's president requested the key for the purpose of determining the cause of the damage; he stated that if it were plaintiff's fault, he would repair it; however, if it were defendant's fault, it would be defendant's responsibility to effect the repairs; defendant readily agreed and gave the key.

Subsequently, plaintiff determined the water damage was caused by defendant's improper maintenance of the air cooler, a responsibility assigned to defendant under the written lease agreement. Thereafter, plaintiff made numerous attempts to contact defendant but without success; this action was commenced. At the expiration of the term of the lease, defendant had not attempted to remove its personal property, such as signs and tire racks from the premises.

At the trial, two defenses were asserted: (1) that by giving the key to the premises, defendant had surrendered the lease and plaintiff had accepted; (2) that the damage to the walls in the front office rendered the premises unusable and constituted a constructive eviction.

From the evidence, the trial court found that it was defendant's intention to abandon the premises; and that plaintiff had neither acted to terminate the lease nor had it failed to perform any obligation thereunder so as to entitle defendant to terminate the lease.

On appeal, defendant contends that the acceptance of the key by plaintiff's president constituted a...