Muller v. Beck

• Decision Date: 07 June 1920
• Parties: MULLER v. BECK et al.
• Court: New Jersey Supreme Court

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, under the evidence, to find there was no surrender, but that he was required to find that there had been a constructive eviction. It then held that where the tenant vacated and abandoned the premises, an eviction by reletting was constructive merely, and should impose on the landlord no penalty other than that of crediting the tenant with the sum so earned by the property, during the term. This is obviously far from holding that the landlord should credit money which the property in fact had not earned. If the court had held as the present plaintiffs ask us to hold, it would have held that the landlord should credit, not only the amount actually earned, but the amount he might have earned. The judgment in Dolton v. Sickel was affirmed in 68 N. J. Law, 73, 54 Atl. 1124. Meeker v. Spalsbury, 66 N. J. Law, 60, 48 Atl. 1026, dealt with the question of constructive eviction, holding...