Winshall v. Ampco Auto Parks, Inc., Civ. A. No. 4-72997.

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtJOINER
Citation417 F. Supp. 334
Docket NumberCiv. A. No. 4-72997.
Decision Date19 July 1976
PartiesWilliam A. WINSHALL, Plaintiff, v. AMPCO AUTO PARKS, INC., and American Building Maintenance Industries, Defendants.

417 F. Supp. 334

William A. WINSHALL, Plaintiff,
v.
AMPCO AUTO PARKS, INC., and American Building Maintenance Industries, Defendants.

Civ. A. No. 4-72997.

United States District Court, E. D. Michigan, S. D.

July 19, 1976.


417 F. Supp. 335

Robert J. Harris, Harris, Lax, Goldman & Gregg, Ann Arbor, Mich., for plaintiff.

Robert H. Janover, Freud, Markus, Slavin, Toohey & Galgan, Troy, Mich., for defendants.

Carl H. von Ende, Miller, Canfield, Paddock & Stone, Birmingham, Mich., for intervenor, Detroit Bank and Trust Co.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

This is an action for breach of contract by the lessor of a parking garage against the lessee. The lessee stopped paying rent, repudiated the lease, and surrendered the keys to the lessor. It contends, however, that certain acts of the lessor released it from liability.

* * * * * *

In this case, the court established a schedule for the development of facts and stipulation, and cross motions for summary judgment were filed.1 The question to be decided on defendants' motion is whether the lessor's re-entry onto the garage premises and resumption of business released the lessee from liability from the time of re-entry. * * *

Factual Background

On June 23, 1972, a 15-year lease agreement was signed between the Winshall Real Estate Trust, as lessor, and Ampco Auto Parks, Inc., as lessee. The leased property, located at 1776 Randolph Street in down-town Detroit, is a 320-car parking structure known as the Grand Circus Garage.

* * *2, 3

By letter dated February 27, 1974, Ampco repudiated the lease and terminated as of April 1, 1974. * * * Winshall accepted the key to the premises, and he immediately began operating the business there. He rejected Ampco's offer to continue its tenancy on a month-by-month basis, being unwilling to relet except by a long-term lease

417 F. Supp. 336
agreement. Winshall did not protest Ampco's repudiation of the lease until September 30, 1974

Acceptance of Surrender by Operation of Law

Relying on the uncontested facts that Winshall accepted possession of the Grand Circus Garage on April 1, 1974, refused a month-by-month tenancy with Ampco, re-entered and operated the business himself continuously thereafter, failed to protest Ampco's abandonment immediately, and was interested only in reselling or reletting on a long-term basis — all in the context of a lease agreement having no survival clause4 — Ampco argues that Winshall accepted surrender of the leasehold by operation of law, releasing Ampco from any liability for rent.

The concept of acceptance of surrender by operation of law may be traced back to the requirement, under the statute of frauds, that interests in real property could not be transferred except by signed writing or by operation of law. It allows a parol transfer by the lessee of real property to operate as a surrender of the lease if it has the consent of the lessor. Logan v. Anderson, 2 Doug. (Mich.) 101 (1845). It is a property concept, appropriately raised as a defense in an action for rent by a landlord against a tenant who has surrendered the premises back to his landlord.

Were this an action for rent, it is doubtful that the facts on record would show Ampco accepted surrender by operation of law.5 Winshall, however, has not sued for rent, but for damages flowing from breach of the lease agreement. At the heart of Ampco's defense is its argument that a defense based on the landlord's acceptance of surrender is applicable to an action for damages. The court holds that it is not.

An action for damages flowing from breach of contract ought not to be confused with an action for rent. In a contract action, the landlord may collect only actual damages flowing from the breach, and he has a duty to mitigate those damages. In an action for rent, the landlord has no duty to mitigate, and, unless he accepts the surrender of...

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5 practice notes
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972) (applying Florida law to the rental of a yacht); Winshall v. Ampco Auto Parks, Inc., 417 F.Supp. 334 (E.D.Mich.1976) (finding that under Michigan law a landlord has a duty to mitigate damages where he is suing for a breach of contract, but ......
  • Circuit City v. Rockville Pike, No. 122
    • United States
    • Court of Appeals of Maryland
    • August 1, 2003
    ...495 A.2d 1320 (1985); P.S.G. Ltd. v. August Income/Growth Fund, 115 N.M. 579, 855 P.2d 1043 (1993); Winshall v. Ampco Auto Parks, Inc., 417 F.Supp. 334 In either case, whether seeking to recover rent under property covenants on the theory that a surrender has not occurred or to recover cont......
  • Bitler Inv. Venture II, LLC v. Marathon Ashland Petroleum, LLC, CAUSE NO.: 1:04-CV-477-TLS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • December 20, 2011
    ...47607 N.E.2d 726, 729 (Ind. Ct. App. 1993) ("a non-breaching party must mitigate damages"); Winshall v. Ampco Auto Parks, Inc., 417 F. Supp. 334, 337 (E.D. Mich. 1976) (a landlord in a non-rent action may recover actual losses "that could not be reduced by his own reasonable efforts"). But ......
  • M & V Barocas v. THC, Inc., Docket No. 174448
    • United States
    • Court of Appeal of Michigan (US)
    • April 30, 1996
    ...N.W.2d 715 (1994); Oak Park Village v. Gorton, 128 Mich.App. 671, 341 N.W.2d 788 (1983). In Page 88 Winshall v. Ampco Auto Parks, Inc., 417 F.Supp. 334, 336 (E.D.Mich., 1976), the federal district court stated a landlord's action for rent is distinguishable from an action for damages arisin......
  • Request a trial to view additional results
5 cases
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972) (applying Florida law to the rental of a yacht); Winshall v. Ampco Auto Parks, Inc., 417 F.Supp. 334 (E.D.Mich.1976) (finding that under Michigan law a landlord has a duty to mitigate damages where he is suing for a breach of contract, but ......
  • Circuit City v. Rockville Pike, No. 122
    • United States
    • Court of Appeals of Maryland
    • August 1, 2003
    ...495 A.2d 1320 (1985); P.S.G. Ltd. v. August Income/Growth Fund, 115 N.M. 579, 855 P.2d 1043 (1993); Winshall v. Ampco Auto Parks, Inc., 417 F.Supp. 334 In either case, whether seeking to recover rent under property covenants on the theory that a surrender has not occurred or to recover cont......
  • Bitler Inv. Venture II, LLC v. Marathon Ashland Petroleum, LLC, CAUSE NO.: 1:04-CV-477-TLS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • December 20, 2011
    ...47607 N.E.2d 726, 729 (Ind. Ct. App. 1993) ("a non-breaching party must mitigate damages"); Winshall v. Ampco Auto Parks, Inc., 417 F. Supp. 334, 337 (E.D. Mich. 1976) (a landlord in a non-rent action may recover actual losses "that could not be reduced by his own reasonable efforts"). But ......
  • M & V Barocas v. THC, Inc., Docket No. 174448
    • United States
    • Court of Appeal of Michigan (US)
    • April 30, 1996
    ...N.W.2d 715 (1994); Oak Park Village v. Gorton, 128 Mich.App. 671, 341 N.W.2d 788 (1983). In Page 88 Winshall v. Ampco Auto Parks, Inc., 417 F.Supp. 334, 336 (E.D.Mich., 1976), the federal district court stated a landlord's action for rent is distinguishable from an action for damages arisin......
  • Request a trial to view additional results

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