concurring in part and dissenting in part:
Although I am less than totally convinced that a proper disposition has been made of the issues raised by Chins in their cross-appeal, especially with reference to another restaurant in the Centre, yet I will defer to the trial court on these matters and concur in the majority’s holding on these. I cannot concur in their disposition of the question of Chins’ liability for rent during the interim period between tenants and dissent on that point.
The majority speaks of the Parthenon and Giordano as “substitute tenants” and places great reliance on paragraph 14 of the Chin lease. In my judgment the operative word in paragraph 14 is “reletting.” The principal question to be determined is the intention of the Centre in “reletting” to the Parthenon and Giordano. It is undisputed that new leases were made with each of these entities, longer in time than the term of the Chin lease, and in Giordano’s case, at a greater rental.
It seems to me that there is a qualitative difference between substituting a tenant under an existing lease and making an entirely new lease with the new tenant. In the former case, it would appear prima facie that the landlord was attempting to mitigate the damages; in the latter case, it becomes acceptance of the surrender of the former tenant and releases him from his obligations under the lease. Paragraph 14 of the Chin lease renounces any duty to mitigate and in a broad sense this holds the key to what the Centre was in fact doing.
The courts of Illinois have not pursued any consistent theory on mitigation. In Reget v. Dempsey-Tegeler & Co. (1968), 96 Ill. App. 2d 278, 280-81, 238 N.E.2d 418, the following general statement appears:
“The majority rule in the United States is that the landlord has no duty whatsoever to mitigate damages in a case of this kind, even to the extent that he can arbitrarily refuse a suitable subtenant offered by the lessee. 31 ALR2d, p 831; 51 CJS, Landlord and Tenant, p 550, § 36; 32 Am Jur, Landlord and Tenant, § 412, p 338. The rationale is that the tenant cannot by his own wrong in abandoning the premises impose a duty upon the landlord. 32 Am Jur, § 519, p 423.
Illinois does not follow the majority rule completely. There is a conflict in Illinois as to whether the landlord has a general duty to mitigate or a duty to mitigate only in those instances where the tenant has tendered a suitable subtenant. In West Side Auction House Co. v. Connecticut Mut. Life Ins. Co., 186 Ill 156, 57 NE 839, the court said: ‘Upon abandonment of the leased premises by the tenant it was the right and the duty of the landlord to take charge of the premises, preserve them from injury, and if it could, re-rent them, thus reducing the damage for which the lessee was liable.’ Id. at 161. See also Contratto v. Star Brewery Co., 165 Ill App 507; Hinde v. Madansky, 161 Ill. App. 216. However, later, and in our opinion, better-reasoned opinions have extended the duty to mitigate only to those instances where the tenant has tendered a suitable subtenant. Wohl v. Yelen, 22 Ill. App2d 455, 161 NE2d 339; Scheinfeld v. Muntz TV Inc., 67 Ill App2d 8, 214 NE2d 506. In Wohl, the court reviewed the law relating to whether a general duty to mitigate damages on abandonment exists.
‘The same conflict exists in other jurisdictions. The majority favor the rule against requiring the lessor to re-enter and use diligence in re-renting .... A minority apply a rule of mitigation similar to that used in other contracts ....
‘Virtually all cases refusing to accept the rule of mitigation involve landlords who have not re-entered and have not been presented with acceptable tenants by the defaulting tenant. These cases therefore may be said to hold that a landlord need not seek out new tenants after the defaulting tenant abandons.’ Id. at 463-464.’ ”
See the general discussion of the problem: Bulkeley, Does a Landlord Have a Duty to Mitigate Damages When a Tenant Abandons During the Lease? 68 Ill. B.J. 588 (1980).
It is interesting to note that the language in paragraph 14 of the Chin lease is with miniscule variations identical with the language found in Hirsch v. Home Appliances, Inc., (1926), 242 Ill. App. 418, 420. In Hirsch the court found no duty to mitigate.
In the instant case, then, the lease itself renounces the duty to mitigate and Hirsch, almost on all fours so far as language is concerned (mirabile dictul), states that as a matter of law there is no such duty. What, therefore, was the Centre doing? It made no demand on Chins for the payment of rent; it served no notice that it was seeking a substitute tenant; it never communicated to the Chins that it would hold them responsible for any deficiency in rent. What it did do, not once but twice, was to make a new lease with a different tenant. That was its choice and in my judgment was an abnegation of any intent to mitigate, notwithstanding it had no duty to do so.
The execution of the new leases was tantamount to an acceptance of Chins’ surrender. The general rule is stated in 51c C.J.S. Landlord & Tenant sec. 125(8) (1968) as follows:
“Ordinarily the execution of a new lease for a term extending beyond that fixed in the original lease, with the tenant’s consent, is an indication of an intent to accept the surrender, even if the original lease authorizes the landlord to relet on the tenant’s account without thereby terminating the lease; but it is not conclusive of such intent.
A reletting by the landlord on his own account constitutes an acceptance of the surrender. So an unqualified taking of possession by the lessor and reletting of the premises by him, if done pursuant to the tenant’s surrender, constitute an acceptance of the surrender and release the tenant; and where nothing is said as to the reletting, and the original lessee is not notified and does not consent, and there is no provision in the lease with regard thereto, the general rule is that the reletting shows an acceptance of the surrender, although the contrary rule seems to prevail in some states, and the tenant is not thereby released from liability on the lease.”
A similar statement is found in 49 Am. Jur. 2d Landlord and Tenant sec. 625 (1970):
“Consent to a surrender terminating liability for rent should not be implied from the mere fact of a reletting, in a jurisdiction which follows the view that the landlord is bound to reduce the damages resulting from a wrongful abandonment by the tenant by reletting the premises if possible. Conversely, in a jurisdiction which adheres to the general rule that a landlord is not required to attempt to relet the premises for the benefit of a tenant who has abandoned the premises wrongfully, the act of a landlord in reletting the premises, following an abandonment thereof, is not to be considered as indicating by itself an attempt on the part of the landlord to mitigate the damages for the benefit of the abandoning tenant, rather than as an acceptance of a surrender of the premises. On the other hand, the landlord’s act in reletting for the purpose of minimizing the damages from a wrongful abandonment is undoubtedly proper, although not required, and does not necessarily constitute an acceptance of a surrender.”
Clearly the rules on acceptance of surrender are no more hard- and-fast than those pertaining to mitigation, but under all the circumstances of this case the actions of the Centre indicate to me the former. Those actions, because of a dearth, even a total lack, of hard evidence of intent, are ambiguous, but they fit more closely into the mold of acceptance of surrender than into the pattern of mitigation. Although not specifically articulated by the trial court, I feel that this was the basis of its decision in denying to the Centre rentals for the interim period and it should be affirmed on that basis.
Since I feel that no calculation of rentals is required under the theory of acceptance, I need not reach the question of larger rent from Giordano, but I also dissent vigorously from the majority’s cavalier rejection of Wanderer v. Plainfield (1976), 40 Ill. App. 3d 552. Mitigation, if it exists, must be fair and is a two-way street.