Muller v. Beck

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtSWAYZE, J.
PartiesMULLER v. BECK et al.
Decision Date07 June 1920
110 A. 831

MULLER
v.
BECK et al.

Supreme Court of New Jersey.

June 7, 1920.


Appeal from District Court of East Orange.

Action by Anton E. Muller against Charles Beck and another. Judgment for plaintiff, and defendants appeal. Affirmed.

The plaintiff seeks to recover rent under the terms of a written lease running from March 1, 1917, to March 1, 1920. The lease contained the usual covenant that the lessee would not relet or underlet the whole or any part of the premises, nor assign the lease without the written consent of the lessor, and the usual option to the lessor to re-enter and relet the premises if they became vacant or deserted during the term. The defendants vacated the premises before August 1, 1919, and left the key with the plaintiff. The defendants procured one Bernstein as a prospective tenant, but the plaintiff refused to accept him. The claim of defendants is that the plaintiff was bound to accept a proper tenant, and thus minimize his damages. The trial judge held to the contrary.

Argued February term, 1920, before SWAYZE and PARKER, JJ.

Philip J. Schotland, of Newark, for appellants.

Lintott, Kahrs & Young, of Newark, for respondent.

SWAYZE, J. There is some conflict in the authorities, and we are embarrassed by a remark in the opinion of this court in Zabriskie v. Sullivan, 80 N. J. Law, 673, 675, 77 Atl. 1075, 1076. The opinion says:

"The premises having been vacated by the tenant, it became the duty of the landlord to rent them in diminution of the damages of the tenant."

That the remark is purely obiter is shown by the facts: (1) That no question of diminution of damages was raised; judgment was rendered for the full amount of the rent claimed by the landlord, and affirmed by this court; and (2) that the only questions of law raised were the power of the landlord, plaintiff, to rent the property, the estoppel of the tenant to deny the landlord's title, and the necessity of notice by the tenant to terminate the lease. We think, therefore, we are not bound by this mere dictum. We have, however, in deference to the learned judge who spoke for us in that case, examined the question further. The cases he cites do not support the dictum. Dolton v. Sickel, 66 N. J. Law, 492, 49 Atl. 679, presented the questions (1) whether the evidence justified the trial judge in finding that there was no surrender by the tenant to the landlord; and (2) whether a reletting of part of the premises by the landlord required a finding of an eviction. The court held that the trial judge had the right,...

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16 practice notes
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...128 N.J.L. 435, 26 A.2d 564 (Sup.Ct.1942); Heckel v. Griese, 12 N.J.Misc. 211, 171 A. 148 (Sup.Ct.1934); Muller v. Beck, 94 N.J.L. 311, 110 A. 831 (Sup.Ct.1920); Tanella v. Rettagliata, 120 N.J.Super. 400, 407, 294 A.2d 431 (Cty.Ct.1972); but see Zabriskie v. Sullivan, 80 N.J.L. 673, 675, 7......
  • Dick Broad. Co. v. OAK Ridge FM, Inc., No. E2010–01685–SC–R11–CV.
    • United States
    • Supreme Court of Tennessee
    • January 17, 2013
    ...Minn. 502, 78 N.W.2d 377, 381 (1956). 14.See Segre v. Ring, 103 N.H. 278, 170 A.2d 265, 266 (1961). 15.See Muller v. Beck, 94 N.J.L. 311, 110 A. 831, 832 (1920). The law in New Jersey is not entirely clear because in Jonas v. Prutaub Joint Venture, 237 N.J.Super. 137, 567 A.2d 230, 232 (Ct.......
  • Ringwood Associates, Ltd. v. Jack's of Route 23, Inc.
    • United States
    • Superior Court of New Jersey
    • September 15, 1977
    ...1102); Id. (76 N.J.L.) 246 (69 A. 1086); Vide Williston on Contracts (rev. ed), § 675A. And compare, also, Muller v. Beck, 94 N.J.L. 312, 110 A. 831. The standard is the action of a reasonable man in the landlord's position. What would a reasonable man do in like circumstances? The term &qu......
  • Brd. & Branford Place Corp.. v. J. J. Hockenjos Co., No. 411.
    • United States
    • United States State Supreme Court (New Jersey)
    • September 15, 1944
    ...Id., 76 N.J.L. 246, 69 A. 1086; Vide Williston on Contracts (Rev.Ed.) sec. 675A. And compare, also, Muller v. Beck, 94 N.J.L. 311, 312, 110 A. 831. The standard is the action of a reasonable man in the landlord's position. What would a reasonable man do in the like circumstances? The term ‘......
  • Request a trial to view additional results
16 cases
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...128 N.J.L. 435, 26 A.2d 564 (Sup.Ct.1942); Heckel v. Griese, 12 N.J.Misc. 211, 171 A. 148 (Sup.Ct.1934); Muller v. Beck, 94 N.J.L. 311, 110 A. 831 (Sup.Ct.1920); Tanella v. Rettagliata, 120 N.J.Super. 400, 407, 294 A.2d 431 (Cty.Ct.1972); but see Zabriskie v. Sullivan, 80 N.J.L. 673, 675, 7......
  • Dick Broad. Co. v. OAK Ridge FM, Inc., No. E2010–01685–SC–R11–CV.
    • United States
    • Supreme Court of Tennessee
    • January 17, 2013
    ...Minn. 502, 78 N.W.2d 377, 381 (1956). 14.See Segre v. Ring, 103 N.H. 278, 170 A.2d 265, 266 (1961). 15.See Muller v. Beck, 94 N.J.L. 311, 110 A. 831, 832 (1920). The law in New Jersey is not entirely clear because in Jonas v. Prutaub Joint Venture, 237 N.J.Super. 137, 567 A.2d 230, 232 (Ct.......
  • Ringwood Associates, Ltd. v. Jack's of Route 23, Inc.
    • United States
    • Superior Court of New Jersey
    • September 15, 1977
    ...1102); Id. (76 N.J.L.) 246 (69 A. 1086); Vide Williston on Contracts (rev. ed), § 675A. And compare, also, Muller v. Beck, 94 N.J.L. 312, 110 A. 831. The standard is the action of a reasonable man in the landlord's position. What would a reasonable man do in like circumstances? The term "re......
  • Brd. & Branford Place Corp.. v. J. J. Hockenjos Co., No. 411.
    • United States
    • United States State Supreme Court (New Jersey)
    • September 15, 1944
    ...Id., 76 N.J.L. 246, 69 A. 1086; Vide Williston on Contracts (Rev.Ed.) sec. 675A. And compare, also, Muller v. Beck, 94 N.J.L. 311, 312, 110 A. 831. The standard is the action of a reasonable man in the landlord's position. What would a reasonable man do in the like circumstances? The term ‘......
  • Request a trial to view additional results

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