dissenting.
Ruud does not take issue with the principle that in mitigating damages, a landlord may not make approval of a sublease contingent upon payment of all arrearages. With this proposition, I agree. Building upon this premise, the majority concludes that if, however, in negotiations, the tenant agrees to pay these arrearages and then reneges, the landlord may make approval of a sublease contingent upon payment of all arrearages. With this proposition, I disagree. I cannot discern a reason for the distinction drawn, and therefore I dissent.
Apparently, there is some sort of estop-pel theory underlying the majority’s rationale — that a tenant, having agreed, and then disagreed, to undertake payment of arrearages to facilitate a sublease agreement, is estopped from expecting the fruition of that sublease, absent payment of arrearages, even though the landlord has no legal right to demand such payment as a condition precedent in the first place.
It is not the tenant’s good faith that we are evaluating here — it is the landlord’s good faith in mitigating damages. Because the tenant produced a willing, able and suitable subtenant, I believe that the landlord acted neither reasonably nor in good faith when he rejected the offer to sublease. It must be remembered that under the sublease Larson remained liable for all obligations as tenant under the lease, and under the lease Larson was responsible for arrearages and attorney’s fees. Thus no special agreement was necessary to hold Larson responsible for obligations he owed under the lease.
I therefore respectfully dissent.