Novak v. Fontaine Furniture Co.

• Decision Date: 04 June 1929
• Citation: 146 A. 525
• Parties: NOVAK v. FONTAINE FURNITURE CO.
• Court: New Hampshire Supreme Court

146 A. 525

NOVAK

v. FONTAINE FURNITURE CO.

Supreme Court of New Hampshire. Hillsborough.

June 4, 1929.

Transferred from Superior Court, Hillsborough County; Young, Judge.

Action by Harry Novak against the Fontaine Furniture Company. Judgment ordered for plaintiff, and defendant brings exceptions. Exceptions overruled.

Case, with a count in covenant, to recover rent alleged to be due on a lease from the plaintiff to the defendant. Trial by Young, J., who found for the plaintiff.

The demised premises comprised a storehouse in Manchester, which the defendant used in connection with its furniture business. The lease was executed March 23, 1924, and was recorded. It was for a term of seven years and contained the usual covenants permitting the lessor to enter to view and make improvements and to expel the lessee in case of a failure to pay rent. The rent reserved was $4,600, payable at the rate of $55 monthly. The terms of the lease were observed and the rent was paid up to June, 1926. On or about July 1, the defendant closed out its business and abandoned the premises. The present proceedings were instituted immediately thereafter. Since then the defendant has made no attempt to carry out any of the provisions of the lease, and there has never been any waiver on the part of the plaintiff. In September, 1926, the plaintiff relet the storehouse in question to a third person, who occupied it for about three months. He expended in necessary alterations for this tenant ah amount in excess of the rent received. He has made reasonable efforts to obtain other tenants, but has been unable to do so.

Upon these agreed facts the presiding justice ruled that the lease was entire and that the provision for payment of rent monthly did not make the contract divisible; that the defendant "without justification, abandoned the premises and the rights granted by the lease, and neglected to pay the stipulated rent"; that the plaintiff "treated this as a breach ending the contract" and was entitled to "compensation for such damages covering the entire period of the lease as are the natural probable result of the defendant's failure to perform its part of the contract." The parties having agreed that the damages for that period amounted to $1,750, judgment was ordered for the plaintiff for that sum.

Transferred on exceptions to the ruling and order of the court.

Osgood & Osgood, of Manchester, for plaintiff.

Herbert W. Rainie, of Concord, for defendant.

MARBLE, J. The defendant contends that all liability for rent or for damages occasioned by the breach of the executory portion of the lease was terminated when the plaintiff resumed possession and control of the premises, since such conduct on the plaintiff's part effected a surrender of the lease by operation of law. The statement in the agreement of facts that there was no waiver is interpreted to mean that the plaintiff did not in fact accept the defendant's relinquishment of possession as a surrender. Where there is such acceptance, the tenant is not liable for subsequent rent. Davis v. George, 67 N. H. 393, 399, 39 A. 979; Elliott v. Aiken, 45 N. H. 30, 36.

So far as notice to the defendant is concerned, the immediate institution of these proceedings was sufficient information of the plaintiff's insistence on liability for breach of covenant, even though it did not constitute notice of an intention to relet.

"The question whether, upon the tenant's abandonment of the premises, the landlord may lease them to another without thereby causing a surrender of the lease, and consequent termination of the tenant's liability for rent, is one of great practical interest, upon which the authorities are not in accord. There are a number of decisions to the effect that the landlord may so 'relet' to another and still hold the former tenant. By others it is regarded as necessary, in order that such reletting shall not effect a surrender, that the landlord, before making the new lease, inform the tenant that he is about to do so on the latter's account, that is, that the purpose is to reduce, but not necessarily to extinguish, the latter's liability for rent. By still another line of decisions it is adjudged that the reletting will terminate the liabilities under the previous lease, without any suggestion being made that a notice to the previous tenant would prevent this result." 2 Tiff. L. & T. 1338, 1339.

A few of the authorities supporting the first view are here cited: Respini v. Porta, 89 Cal. 464, 26 P. 967, 23 Am. St. Rep. 488; Marshall v. John Grosse Clothing Co., 184 Ill. 421, 56 N. E. 807, 75 Am. St. Rep. 181; Hickman v. Breadford, 179 Iowa, 827, 162 N. W. 53; Banks v. Berliner, 95 N. J. Law, 267, 113 A. 321; Bumiller v. Walker, 95 Ohio St. 344, 116 N. E. 797, L. R. A. 1918B, 96; Higgins v. Street, 19 Okl. 45, 92 P. 153, 13 L. R. A. (N. S.) 398, 14 Ann. Cas. 1086; Bowen v. Clarke, 22 Or. 566, 30 P. 430, 29 Am. St. Rep. 625; Auer v. Penn, 99 Pa. 370, 44 Am. Rep. 114; Martin v. Siegley, 123 Wash. 683, 212 P. 1057. Further citations on the subject will be found in 3 A. L. R. 1080; 58 A. L. R. 906; 16 R. C. L. 971; 35 C. J. 1093, 1094; 14 Mich. Law Rev. 82; 28 Harv. Law Rev. 329, 330; 14 Ann. Cas. 1088.

It is frequently said that the rule that the tenant's liability is terminated by the reletting as a matter of law, irrespective of notice, is supported by the better logic, but that strong practical considerations justify the adoption of the rule generally followed. Of course it cannot be denied that where the landlord relets he performs an act repugnant to the continuance of the former tenancy (Felker v. Richardson, 67 N. H. 509, 511, 32 A. 830), but this does not necessarily mean that his right to sue on the original undertaking is either illogical or out of harmony with the prevailing trend of the law in analogous situations.

In any case involving a breach of contract the plaintiff must make reasonable efforts to curtail his loss. Lee v. Dow, 71 N. H. 326, 327, 51 A. 1072; Hutt v. Hickey, 67 N. H. 411, 418, 29 A. 456. Consequently it would seem just, when a tenant has broken his agreement and repudiated the lease, to permit, if not to require, the landlord to make similar efforts to relet the premises. 40 A. L. R. 190-197; Monger v. Lutterloh, 195 N. C. 274, 279, 142 S. E. 12; Bumiller v. Walker, 95 Ohio St. 344, 356, 116 N. E. 797, L. R. A. 1918B, 96; Martin v. Siegley, 123 Wash. 683, 687, 212 P. 1057.

Clarence Milton Updegraff, in 38 Harv. Law Rev. 64, 79. declares that although the new...