Sjoberg v. Hartz , 199 Minn. 81 ( 1937 )

In her petition for rehearing plaintiff asserts that her principal contention is that after the termination of the leasehold estate by the surrender of the premises by the defendants to her predecessors in interest the deficiency rule of liability imposed by the reëntry clause contained in the lease became effective, and that there was no finding by the trial court of intent on the part of the administrator to release the defendants from their liability under the reëntry clause of the contract. She places her dependence upon the case of Newberg v. Conley, 190 Minn. 459,252 N.W. 221. The plaintiff moved the trial court for a finding that there was no intent upon the part of the landlord to release the defendants from their liabilities to pay rent under the reëntry clause. The denial of this motion was equivalent to a contrary finding, Buro v. Morse, 183 Minn. 518,237 N.W. 186; In re Estate of Malchow, 143 Minn. 53, 172 N.W. 915; and therefore we have a situation directly opposite to that in the Newberg case, where, upon competent evidence, the jury found that it was not the landlord's intent to waive his rights under the reëntry clause. In the case at bar the reëntry clause provided for nonforfeiture of rent in case of reëntry for breach of covenant on the part of the lessee. No provision was contained in the lease for the continuance of liability in the case of a surrender, which, being accepted, relieves the tenant of his contract obligations under the leasing contract.

The petition for rehearing is denied.

MR. JUSTICE STONE took no part in the consideration or decision of this case.

MR. JUSTICE PETERSON, not having been a member of the court when the case was argued and submitted, took no part in its consideration or decision.