McIntosh v. Gitomer

• Decision Date: 02 February 1956
• Docket Number: No. 1723.,1723.
• Citation: 120 A.2d 205
• Parties: Frederick H. McINTOSH and Tawanah McIntosh, Appellants, v. Norman M. GITOMER and Louis J. Gitomer, Appellees.
• Court: D.C. Court of Appeals

Page 205

120 A.2d 205

Frederick H. McINTOSH and Tawanah McIntosh, Appellants, v. Norman M. GITOMER and Louis J. Gitomer, Appellees.

No. 1723.

The Municipal Court of Appeals for the District of Columbia.

Argued December 19, 1955.

Decided February 2, 1956.

Richard R. Atkinson, Washington, D. C., with whom E. Lewis Ferrell, Washington, D. C., was on the brief, for appellants.

Milford F. Schwartz, Washington, D. C., for appellees.

Before CAYTON, Chief Judge, and HOOD and QUINN Associate Judges.

HOOD, Associate Judge.

For convenience the parties hereto will be referred to as landlord and tenants. The landlord leased to the tenants a business property for a period of four years and seven months, beginning June 1, 1952, at a rental payable in monthly instalments of $85. The landlord sued for rent for the period beginning September 1, 1953, and ending February 28, 1955. The trial court allowed full recovery and the tenants have appealed.

At trial it was shown that on March 2, 1954 the landlord by legal process had evicted the tenants for nonpayment of rent, and the controversy here centers largely around a covenant of the lease which, referring to re-entry by the landlord for nonpayment of rent or breach of any covenant, provided: "And in the event of such re-entry by process of law, the lessees nevertheless, agree to remain answerable for any and all deficiency or loss of rent which the lessors may sustain by such re-entry; and in such case, the lessors reserve full power which is hereby acceded to by the lessees to re-let the premises in whole or in part, as the case may be, or said lessors shall have the right and option to declare this lease terminated upon any breach of the terms hereof, or upon the failure or neglect of the lessees to keep and perform any covenant, contained or agreement herein contained on their part to be kept and performed."

Our question is what was the liability of the tenants after their eviction. Ordinarily an eviction and re-entry by the landlord terminates the tenancy and the tenant is liable only for rent accrued at the time of eviction. Any continuing liability must rest on some covenant of the lease. Covenants imposing liability after termination of the lease for breach of condition have generally been upheld,¹ but we have found no case in this jurisdiction dealing with such a covenant.

It has been held in this jurisdiction that a tenant cannot by abandoning leased premises relieve himself from liability for rent.² The landlord may allow the premises to remain vacant and hold the tenant for the full rent, or he may reenter and re-let and hold the tenant for any deficiency in rent.³ We rule that a covenant in a lease imposing liability on the tenant after eviction for default is valid, but such liability is one for damages and not for rent and is to be measured strictly by the covenant provisions.⁴ The covenant in question provided that if the landlord re-entered by process of law for default of the tenants, the tenants would be liable "for any and all deficiency or loss of rent," and authorized the landlord to re-let the premises at the tenants' risk. The landlord, however, sued for full rent and made no showing that he had made efforts to re-let the premises. Having reserved to himself the right to re-let, it was his duty to make reasonable efforts to that end and thereby minimize his damages, for, as we have observed, the tenant was liable only for any deficiency or loss of rent.⁵

Furthermore, the action for loss or deficiency of rent was premature because the extent thereof cannot be determined until the end of the term. Perhaps a provision could be drawn so as to make the tenant liable for monthly deficits, but the covenant here in question did not so provide. "The tenant when ejected ceases to be a tenant. What he covenants to pay is the damage, not the rent. To hold him for monthly deficits is to charge him with the obligations of a tenant without any of the privileges. He must pay in the lean months, without recouping in the fat ones. He must do this, though it may turn out in the end that there has been a gain and not a loss. A liability so heavy may not rest upon uncertain inference." Hermitage Co. v. Levine, 248 N.Y. 333, 162 N.E. 97, 98, 59 A.L.R. 1015, 1018. Until the damages are fixed an action therefor does not lie and it was error to allow recovery for "rent" accrued after the eviction.⁶

Another point to be considered relates to a deposit of $170 made by the tenants at the consummation of the lease. With respect to this deposit the lease provided:

"Lessees herewith deposit with lessors the sum of One Hundred and Seventy Dollars ($170.00), the receipt whereof is hereby acknowledged, the same to be held by lessors as security for the full and faithful performance and observance by lessees of...