DUTY OF LANDLORD WITH REFERENCE TO PREMISES ABANDONED BY TENANT.

Court of Appeals for Mahoning County.

#### Kate E. White v. George M. Smith.

Decided, October 11, 1917.

*Landlord and Tenant*— Abandonment *of Premises by Tenant*— Land*lord Not Legally Bound to Relet.*

Where a tenant abandons the leased premises, the landlord is under no legal obligation to relet such premises, and in an action to recover the rentals accruing after such abandonment the tenant can not interpose as a defense want of reasonable diligence to re-rent the same.

*McKain & Ohl,*for plaintiff in error.

*William,*Zimmerman, contra.

Farr, J.

This is a proceeding in error prosecuted in this court from the judgment of the Court of Common Pleas of Mahoning County. The parties sustain the same relation here as in the court below.

On tue 28th day of January, 1916, plaintiff in error began an action in the municipal court of the city of Youngstown against defendant in error to recover the sum of $168 and costs; the principal part of said sum for which recovery was sought was for certain installments of rentals falling due by the terms of a certain agreement in writing made and entered into between said parties for the period of one year, beginning on the 1st day of May, 1915, for the use and occupancy of certain premises belonging to plaintiff in error and situated at 360 Crescent avenue, Buffalo, N. Y.

To the statement of claim of plaintiff below, the defendant filed a statement of defense claiming that on or before the 31st day of October, 1915, he surrendered his lease to plaintiff, and delivered possession of said premises to her, and that *439such surrender was duly accepted and that thereupon plaintiff rented or could have rented said premises to another tenant at a rental equal to that specified in the lease. Trial was had and a judgment entered for plaintiff in the sum of $158.50. An appeal was taken to the court of common pleas of this county, where said cause was tried to a jury and a verdict rendered for the defendant upon which judgment was entered and from which error is prosecuted here.

There are two principal assignments for error: First, that the court erred in its charge to the jury; second, that the verdict is against the weight of the evidence. That part of the charge of the trial court for which error is assigned reads as follows:

> “If he left the premises, then there was an obligation resting upon the plaintiff, and that obligation was in law that she should, in good faith, exercise due diligence in attempting to find a tenant; but, if she in good faith, exercised due diligence to obtain a tenant and failed to obtain one, then she can recover for this amount if she could not obtain a tenant until the first day of April, 1916. But if, on the other hand, she did not exercise good faith, and exercise reasonable diligence to obtain a tenant, then I say to you from the time she could have obtained a tenant, then she is not entitled to recover.”

The record discloses and it is conceded that the defendant, Smith, vacated said premises on or about the 22d day of October, 1915, but paid the rent to the 1st day of-November following. On October 25, 1915, James R. White, who in the rental of said premises, had acted as the agent of his sister, Kate E. White, wrote Mr. Smith inquiring as to what he purposed to do in regard to said lease, stating that as the same did not expire until the first of the next May, that he had- no other alternative than to hold him to the terms of the lease. The record discloses that an effort was made by Kate E. White or h'er agent to secure a suitable tenant but none was obtained and said premises were not relet until April 1, 1916, after which no rentals are claimed. Testimony was offered by the defendant for the purpose of showing that plaintiff consented to the surrender of said premises by defendant and that plaintiff *440failed to use reasonable diligence to relet the saíne, and it is also urged in argument, and in fact it is the principal issue raised, that when the defendant vacated said premises, it was the duty of plaintiff to use reasonable diligence to re-rent the same; or, in other words, it is claimed that if a lessee abandon the leased premises before the expiration of his term, it is the duty of the lessor to use reasonable diligence to relet said premises and if he fails to do so he can not recover the installments of rental accruing after such abandonment.

In 3 *Sutherland on Damages,*Section 844, p. 3111, it is provided that:

> • “The landlord is under no obligation to rent premises which have been abandoned by a tenant.”

Numerous cases are cited in the note to and in support of the foregoing text. Likewise it was held in *Gray*v. *Kaufman Dairy & Ice Cream Company,*41 N. Y. Supp., 73, as follows:

> “Where a tenant abandons the demised premises, it is not the duty of the landlord to relet, in order to reduce his claim for damages against the tenant.”

To the same effect it is held in *Merrill*v. *Willis,*51 Nebr, 162, 70 N. W., 914; *Becar*v. *Flues,*64 N. Y., 518; *Mfg. Co.*v. *Dinwiddie,*116 N. Y. Supp., 716; *Milling*v. *Becker,*96 Pa. St., 182; *Underhill*v. Collins, 15 N. Y. Supp., 495; 132 N. Y., 269; 30 N. E., 576; likewise in 24 Cyc., 923, note 18, and *Goldman*v. *Boyles,*141 S. W., 283, 6th paragraph of the syllabus.

And in *Ran*v. *Baker et al,*118 Ill. App., 150, it was held that:

> “Where a tenant wrongfully abandons demised premises, he can not interpose the want of diligence of his landlord in failing to re-rent the premises as a defense to an action for the rent accruing after such abandonment.”

The foregoing is well in point, with the instant case, in which the want of diligence on the part of the landlord to relet is sought to be interposed as a defense.

In the well considered case of *Higgins*v. *Street,*13 L. R. A. (N. S.), 398, it is held that:

> *441“If a tenant wrongfully abandons leased premises before the expiration of the term,' the landlord may, at his election, at once enter and terminate the contract and recover the rent due up to the time of abandonment, or he may suffer the premises to remain vacant and sue on the contract for the entire rent, or he may give notice to the tenant of his refusal to accept a surrender, when such notice can be given, and sublet the premises for the unexpired term for the benefit of the lessee to reduce his damages.”

The foregoing is clear and explicit and is supported by many cases of favorably recognized jurisdictions. And why not? A lessor and lessee enter into a valid contract for a fixed and definite period, during all of which the lessee is for some purpose the owner of the demised premises and may exercise dominion and control over the same, even to the exclusion of the lessor; therefor it is but fair that the lessor should rely upon him to do so. The lessee may rely and rest upon the letter of his contract, and occupy without let or hindrance to the end of his term; the lessor has equal rights and may depend upon the lessee to do so or pay his rentals just the same. The lessor may elect to do otherwise, and if able to secure a suitable tenant may relet such premises and under such circumstances it might be said would be morally bound to do so, as observed in *Shipman*v. *Stone,*16 C.C.(N.S.), 468, as follows:

> “It is the landlord’s moral duty, if not his legal duty, to ease the tenant by reletting for the best rent he can get, and his so doing does not of itself work ,a surrender of the lease. ’ ’

However, the landlord is in nowise legally obligated so to do. He may rest upon the terms of his rental agreement and leave the disposal of the demised premises for the remainder of the term at the option of the lessee. Said instruction might be further criticised for the reason that the jury might well have understood from it that the lessor was bound to relet said premises to any one willing to rent the same, whether such prospective lessee be desirable as a tenant or not, and in any event such is not the rule of law to be .applied.

Therefore, the above instruction by the trial court was prejudicial error. Application of the foregoing principles would *442necessarily work a reversal on the weight of the evidence, and tbe judgment is therefore reversed.'

Pollock, J., and Metcalfe, J., concur.