Weingarten/Arkansas, Inc. v. ABC Interstate Theatres, Inc.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING JULY 5, 1990

Rose Law Firm, A Professional Association, by: Richard T. Donovan, for appellant.

No response. Melvin Mayfield, Judge.

The appellant has filed a petition for rehearing in which it contends that our opinion did not address the effect of contractual provisions on our holding that appellant “impliedly” accepted surrender of the premises. We did not discuss this point directly because we thought our opinion made it clear that we found under the facts in this case when applied to the case of Hays v. Goldman, 71 Ark. 251, 72 S.W. 563 (1903), from which we quoted, that “appellant’s conduct with respect to the property was so inconsistent with its claim to be acting for appellees that it amounted to an acceptance of surrender of the lease.” 31 Ark. App. 109, 789 S.W.2d 1.

We did not think it necessary to cite authority that parties are as free to change their contracts (or leases) as they are to make them. Even if appellant had a written provision in its lease that it would not, or could not, accept the surrender of the lease, we still think it could do so unless the other party would not agree to that action.

In addition, the case cited in the petition for rehearing, Knight v. OMI Corporation, 568 P.2d 552 (Mont. 1977), as authority for the proposition asserted on rehearing, holds that a lease may give the landlord the right to reenter and resume possession of the leased premises and still hold the tenant liable for subsequently accruing rents for any deficiency resulting from reletting, but the language must be clear. In the cited case the language was held not to be clear because of conflicting provisions.

In the instant case, ifwedidnotfind appellant’s conduct so inconsistent with its claim that it did not accept surrender of the property, we would have to hold the provisions of the lease in such conflict that the holding in the Knight case would cause us to reach the same result we reached in our original opinion.

Rehearing denied.

Jennings, J., would grant.

Rogers, J., not participating.