Sommer v. Kridel

74 N.J. 446, 378 A.2d 767 (N.J. 1977)

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Nature of the Case

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Facts

Sommer (P) leased an apartment to Kridel (D). The terms were from May 1972 to April 1974, with the first month's rent due in June 1972. D paid P one-half the rent in March and the remaining rent from a security deposit. D wrote P two weeks later explaining that he would be unable to take the apartment. P did not respond to the letter. Another renter approached P and was ready willing and able to take the apartment but was refused by P. P did not reenter the apartment nor exhibit it to anyone until August 1, 1973, and actually rented the apartment on September 1, 1973, for a new rental of $345 per month. P sued D to recover the full amount of the lease. D alleged that P breached the contract, failed to mitigate damages and accepted D’s surrender of the premises. The trial court ruled for D. The trial court reasoned that justice and fair dealing imposed a duty on the landlord to mitigate damages. The court also held that P’s failure to make any response to D’s unequivocal offer of surrender was tantamount to an acceptance, thereby terminating the tenancy and any obligation to pay rent. P appealed. The Appellate Division reversed. In Riverview: D entered into a two-year lease with P. The lease prevented D from subletting or assigning the apartment without the consent of the landlord. The monthly rent was $450 per month. D took possession and occupied the premises for one year. D then vacated the premises after having paid rent until January 31, 1974. P sued for rent due on the remaining ten months. D answered the complaint by alleging that there had been a valid surrender and that P failed to mitigate damages. The trial court granted a motion for summary judgment against D. The appellate division affirmed. D appealed.