FOX v. ROETHLISBERGER

VOELKER, J.

On October 5, 1953, and before the end of their term the defendants vacated a Lansing store building they had leased from the plaintiffs and the latter filed their bill to reform the lease and obtain a money decree for the 9 months the premises had remained empty until rerented. The bill was filed to reform the lease because of a scrivener's error, but this need not directly concern us here since the defendants conceded the error and the need to reform. The defendants denied liability mainly on the ground that plaintiffs had refused to relet the premises to one Marshall whom they alleged was upon vacancy ready, willing and able to rerent the premises upon the same terms, and that plaintiffs had thus wrongfully failed to mitigate damages.

At the hearing below one of the plaintiffs and his real-estate agent, Mr. Baker, testified that they had made repeated efforts to rent the premises after the abandonment but for 9 months were unsuccessful. The plaintiff said he called on several Lansing business men and his agent Baker said he put up "For Rent" signs and saw or phoned 18 or 20 people. Defendants did not testify but produced Marshall who testified that on or about October 5, 1953, he had phoned Baker and offered to rent the vacated premises on the same terms, but that Baker had turned down this offer because Marshall's business would compete with that of another tenant in the same building. Marshall also testified that some 2 months later Baker phoned Marshall (who had in the meantime gotten other quarters) and offered to rent him the premises at a lower figure, all of which Baker denied, saying that he had himself twice phoned and tried to interest Marshall at the original rental figure but could get no firm offer. The record also shows that upon vacating the defendants tendered plaintiffs' agent a key so that rental signs could be put up, which was done. Following the hearing the court found for the plaintiffs and entered a decree accordingly, from which this appeal results.

Both parties seek to propound and discuss here many knotty and profound questions as to the state of the law in Michigan in these situations. Some of these questions — either tacitly or expressly — are as follows: Is there a duty on a landlord to act to rerent premises wrongfully abandoned in order to mitigate damages or may he choose to let the premises remain idle? Does the landlord's efforts to rerent constitute a re-entry by him in any case imposing a duty to use diligence in seeking a new tenant to minimize damages? If the landlord has such a duty, must he rerent at a lower figure? Or accept a new tenant who may compete with others of his tenants? Or accept a new tenant engaged in a different business from that of the original tenant under the abandoned leasehold? Does the burden of proving diligence to rerent to mitigate damages rest upon the landlord to show or upon the tenant to refute?

Some of these interesting questions are discussed or touched upon in annotations in 40 ALR 190 and 126 ALR 1219. Our opinion in Michigan-Lafayette Building Co. v. Continental Bank, 250 Mich. 591, seems, obliquely at least, to imply that we might be inclined to place some burden on the landlord to mitigate damages in these situations. But we do not think it is necessary for us to grapple with these large prickly questions to decide this case. Whatever the state of the law of Michigan may or should be on these and other related questions — there is in fact a remarkable paucity of authority — it seems enough to say here that, taking a view of the law most favorable to the defendants, there was evidence that the plaintiffs and their agent did in fact endeavor to rent the premises; that they were finally successful; and that the defendants, who did not testify, did nothing whatever (beyond delivering a key) to mitigate their own damages, so far as this record discloses.

Whether Baker called Marshall or vice versa, or whether Baker sought to lease the premises to Marshall at the original lease figure or a lower one, one fact plainly emerges: he was at least trying to rent the place, duty or no duty. We see no point in discussing the possible legal effect here of re-entry under terms of the lease by the landlord because our record shows that the defendants upon vacating consented to let the landlord put up "For Rent" signs and gave his agent a key to do so. Nor is there any claim made here that plaintiffs consented to the abandonment of the premises or that equity is not the proper forum for this action. It further appears that Marshall never saw either the owner or Baker, and that whatever offers he may have made were conveyed to Baker over the phone. There is no showing that as part of this "offer" Marshall proffered a lease or a sublease or of when he proposed to take over or for how long a term. Wherever the burden of showing or refuting the landlord's due diligence may properly lie (which we do not decide), the present defendants may in any case scarcely be said to have met or refuted it as neither of them testified and the plaintiffs' evidence on this score is uncontradicted, except as for Marshall. Finally we cannot help mildly speculating why, if the defendants could produce Marshall later as a witness, they could not have produced him earlier as a tenant. They chose to do nothing but get hence from the premises.

Whether the circuit judge reached a right result for right reasons or wrong ones we do not feel compelled to pass on. We think it is enough to say that the result he reached appears, under the circumstances, to be a sound one supported by competent testimony and that, therefore, his decision must be affirmed, with costs.

DETHMERS, C.J., and SHARPE, SMITH, EDWARDS, KELLY, CARR, and BLACK, JJ., concurred.