Whitehorn v. Dickerson, 8612

Decision Date29 September 1967
Docket NumberNo. 8612,8612
Citation419 S.W.2d 713
PartiesWillie R. WHITEHORN, Plaintiff-Appellant, v. G. W. DICKERSON, Defendant-Respondent.
CourtMissouri Court of Appeals

James R. Hall, Doniphan, Graham Moore, Memphis, Tenn., for plaintiff-appellant.

John A. Casey, Poplar Bluff, for defendant-respondent.

STONE, Presiding Judge.

In this court-tried action for rental reserved under a written lease agreement executed under date of September 20, 1962, by plaintiff Mrs. Willie R. Whitehorn, as lessor, and by defendant G. W. Dickerson, as lessee, plaintiff appeals from a judgment in favor of defendant. The leased premises, a portion of a building owned by plaintiff in Covington, Tennessee, consisted of a ground-floor office suite remodeled by plaintiff according to 'his (defendant's) own plans' for the latter's use in his practice as a chiropractor. The term of the lease was for the period of five years from and after October 1, 1962. The rental reserved for that term was $7,500 'payable monthly in advance in 60 monthly installments of $125.00 each.' After making eight monthly payments in the aggregate amount of $1,000, defendant quit the leased premises 'because of his financial condition' and later moved to Missouri, where this action for subsequent installments was instituted.

Since the situs of the leased premises was in Tennessee and the lease was negotiated and executed there, the substantive rights of the respective parties are determinable under the law of Tennessee (Consolidated Sun Ray, Inc. v. Oppenstein, 8 Cir., 335 F.2d 801, 803(2); Broadwell v. Banks, D.C.Mo., 134 F. 470, 474; C. H. Little & Co. v. Gay Apparel Corp., D.C.N.Y., 108 F.Supp. 762, 763(2); annotation 15 A.L.R.2d 1199, 1203), and the parties so stipulated in the trial court. Relying upon Karns v. Vester Motor Co., 161 Tenn. 331, 30 S.W.2d 245, the only authority cited in his brief, defendant lessee asserts that case 'imposes upon the landlord the duty to make a reasonable effort to rent the abandoned premises in order to minimize the lessor's damage' and that instant plaintiff 'was under an obligation to rent the abandoned premises even if said premises had to be rented at a lower rental.' So defendant contends that, upon his admitted abandonment of the leased premises, plaintiff had a duty to mitigate her damages, which she failed to discharge. Upon that theory the trial court was persuaded to enter a general judgment for defendant and we are urged to affirm.

But if plaintiff had such duty to mitigate damages (of which more anon), her failure so to do would not have destroyed her cause of action (Brown v. Kroger Company, Mo.App., 358 S.W.2d 429, 432) or barred her entirely from recovery, but only would have prevented the recovery of such damages as might have been avoided by reasonable efforts on her part. Brown v. Kroger Co., supra, 358 S.W.2d at 432; Cline v. City of St. Joseph, Mo.App., 245 S.W.2d 695, 702(10); Lokey v. Rudy-Patrick Seed Co., Mo.App., 285 S.W. 1028, 1033(12); 25 C.J.S. Damages § 33, l.c. 703. Hence, this would have been an affirmative defense, as was recognized by defendant who pleaded it as such in his answer; and the burden of proof as to such defense would have rested upon defendant regardless of whether action had been instituted in Missouri (Cline v. City of St. Joseph, supra, 245 S.W.2d at 702(11)) or in Tennessee. International Correspondence School v. Crabtree, 162 Tenn. 70, 34 S.W.2d 447, 449, 78 A.L.R. 330; Plesofsky v. Kaufman & Flonacker, 140 Tenn. 208, 204 S.W. 204, 206(2), 1 A.L.R. 433; Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785, 792(12); Price v. Osborne, 24 Tenn.App. 525, 147 S.W.2d 412, 413(6, 7).

Upon cross-examination of plaintiff, the only witness, it was developed that she had made no affirmative effort to rent the leased premises after defendant had abandoned them, and that she had entertained the belief, perhaps mistakenly (so Karns v. Vester Motor Co., supra, would seem to indicate) but nevertheless honestly after advising with her then Tennessee counsel, that, if she had relet the abandoned premises on terms other than those in the lease executed by defendant, such action would have worked an acceptance of defendant's surrender by operation of law, which would have extinguished the leasehold interest and released defendant from liability for payment of subsequent monthly installments. See Von Schleinitz v. North Hotel Co., 323 Mo. 1110, 23 S.W.2d 64, 74--78(1--3); Zoglin v. Layland, Mo.App., 328 S.W.2d 718, 722--723(7). However, she referred to defendant the 'one or two' persons who called her about the leased premises, and her then Tennessee counsel even 'drew up a lease for a loan company who we thought would take it' but did not. There was no showing that any 'reasonably acceptable tenant' was tendered by defendant or was otherwise available to plaintiff. See note 55 Mich.L.Rev., 1029, 1031. So it fairly could not have been said that plaintiff absolutely and arbitrarily refused to relet. Furthermore, there was no evidence as to (a) when the 'one or two' persons or the 'loan company' had contacted plaintiff, or (b) the date, rentals or terms upon which any person or firm would have leased the abandoned premises.

Accordingly, if it was plaintiff's duty to have made an effort to mitigate her loss, the record before us would not have permitted a finding by the trier of the facts as to when that duty was breached, if so, or what diminuation of damages would have resulted but for such breach. This was acknowledged by defendant's counsel in his oral argument on appeal when, overlooking the fact that plaintiff's alleged failure to mitigate her damages was an affirmative defense and that the burden of proof with respect thereto rested upon defendant, counsel frankly conceded that plaintiff would have been entitled to have recovered the stipulated rentals to the date on which she had (so he asserted) 'refused to rent the premises' but vigorously insisted that the general judgment for defendant should be affirmed in the absence of evidence as to when she had so refused.

This brings us to the clear conclusion, with which our opinion properly might be terminated, that the judgment for defendant cannot stand. However, mindful that the case must be remanded for retrial, we are moved to discuss the basic question as to whether, under Tennessee law, plaintiff had a duty to take affirmative action in an effort to mitigate her damages. As we have noted, instant defendant insists that Karns v. Vester Motor Company, 161 Tenn. 331, 30 S.W.2d 245 (1930), imposed such duty. We do not so read and understand that case. In Karns, plaintiffs lessors were informed by defendant lessee that the latter intended to vacate the leased premises. Thereupon, plaintiffs notified defendant lessee that they declined to accept surrender of the lease and would continue to look to it for the rent but that, to minimize the loss, they would undertake to rent the premises for lessee's account, still holding it responsible for any loss. The only issue was as to whether or not plaintiffs lessors, by thereafter rerenting the premises to others, 'consented, as a matter of law, to the surrender to the premises' (30 S.W.2d at 245) and the only ruling necessary for disposition of the case on appeal was that, in the stated circumstances, there was no acceptance of surrender. Instant defendant relies upon the last sentence in Karns, supra, 30 S.W.2d at 246, that '(w)e do not hesitate, therefore, to adopt the broad and just rule stated above, which conforms to a general rule approved by this court, requiring the injured party to a contract to do everything possible to minimize his damages.' (Emphasis ours) But 'the broad and just rule stated above' was the rule as to what works an acceptance by the lessor of the lessee's surrender of leased premises, and the italicized portion of the abovequoted sentence shows that the court simply pointed out that such rule conformed to a general rule in the law of contracts.

In an annotation at 110 A.L.R. 368 on the subject 'when landlord's reletting, or efforts to relet, after tenant's abandonment or refusal to enter, deemed to be acceptance of surrender,' the Karns case, supra, was cited with others in which 'it has been held, apparently as a matter of law, that there was no acceptance of surrender.' 110 A.L.R at 376. But Karns was not cited in either of two exhaustive annotations at 40 A.L.R. 190 and 126 A.L.R. 1219 on the basic issue in this case, i.e., 'duty of landlord, on abandonment of premises by tenant before expiration of term, to use due diligence to procure another tenant.'

The appellate courts of Tennessee have cautioned the bar that '(w)hat we say in an opinion should be confined to, and limited by, the facts of the case under consideration and the questions necessary for a decision of that case.' Staten v. State, 191 Tenn. 157, 232 S.W.2d 18, 19(5); Textile Workers Union v. Brookside Mills, Inc., 47 Tenn.App. 663, 341 S.W.2d 758, 760. See Taylor v. Taylor, 162 Tenn. 482, 40 S.W.2d 393, 395. For similar warnings by our Missouri courts, see State ex rel. Bixby v. City of St. Louis, 241 Mo. 231, 239--240, 145 S.W. 801, 803; Ragsdale v. Brotherhood of Railroad Trainmen, Mo.App., 157 S.W.2d 785, 787(3). "Courts sometimes go beyond the point necessary for a decision in a lawsuit and make expressions on certain things there involved which are not necessary for a determination of the lawsuit. Such statements by a court are known as dictum * * * and (are), therefore, not a controlling statement to courts when the question rises again that has been commented on by way of dictum." Frost v. State, 203 Tenn. 549, 314 S.W.2d 33, 35(3).

In fine, we think that Karns, supra, is Tennessee authority that, in circumstances such as there shown, the lessor's reletting does not work an acceptance of surrender of the leased premises (or, otherwise stated, that the...

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