Halpern, Crahay and Wood.
[153 NJSuper Page 3] This is a suit for rent by plaintiff landlord against defendant tenant claiming damages in the sum of $5,865, with interest and costs. Defendant counterclaimed for the return of $345 which represented one month's security deposit. The case was tried on a stipulation of facts,*fn1 [153 NJSuper Page 4] and without oral argument. Under these circumstances, the trial judge's decision is not entitled to any special deference since he saw no witnesses and had the same written record before him as we have on appeal. See State v. Johnson , 42 N.J. 146, 161 (1964); Cemetery Workers v. Roman Cath.
The trial judge, applying what he termed "justice and fair dealing" and the modern trend of the law, dismissed plaintiff's complaint because (a) defendant's offer to surrender was unequivocal and that plaintiff was under a legal duty to reject it, hence his silence was an acceptance of the offer to surrender which, in turn, terminated the tenancy, and (b) plaintiff's failure to mitigate damages barred his right to relief. In addition, he dismissed defendant's counterclaim without stating his reasons for doing so.
This case typifies situations wherein courts must be careful not to permit hard cases, which create sympathy for a litigant, to make bad law. See the dissenting opinion of Justice Holmes in Northern Securities Co. v. United States , 193 U.S. 197, 400, 24 S. Ct. 436, 48 L. Ed. 679 (1904). We understand and are in complete accord with the modern approach and philosophy expressed by our Supreme Court in cases like Weintraub v. Krobatsch , 64 N.J. 445 (1974); Marini v. Ireland , 56 N.J. 130 (1970); Reste Realty Corp. v. Cooper , 53 N.J. 444 (1969); Totten v. Gruzen , 52 N.J. 202 (1968), and Schipper v. Levitt & Sons, Inc. , 44 N.J. 70 (1965), which were relied on by the trial judge. But we are not here concerned with one who has misrepresented the condition of premises to be sold or rented, or has failed or refused to furnish agreed upon services to his tenant, or has installed defective equipment in premises demised or sold to another. Rather, we have a landlord who was prepared to comply fully with his lease agreement voluntarily made between the parties, and where the tenant was under no compulsion by reason of any housing shortage to make the lease.
We are not unsympathetic to defendant's plight resulting from his broken marriage plans, but we are not prepared to abrogate the law of contracts because of it. Admittedly, defendant breached the lease agreement with plaintiff. Therefore, if he is to be relieved from his obligations
under the lease, he has the burden of proving there has been a surrender by act and operation of law and that such has been accepted by plaintiff. N.J.S.A. 25:1-2. Concisely stated:
Whether there has been a surrender by operation of law depends on the intention of the parties to be deduced from their words and acts, and is ordinarily a question of fact for the jury. The burden of proof is on the party alleging the surrender, and where it is to be inferred from circumstances or conduct inconsistent with an intention to perform, the proof must be clear.
On the record before us, we are unable to find that defendant carried this burden of proof. The evidence is to the contrary. The lease gave plaintiff the option to reenter and relet the demised premises in the event of defendant's default. It specifically provided that plaintiff's refusal to relet on default would not discharge defendant from paying rent due. In short, plaintiff was under no legal duty to mitigate damages by reletting the premises upon defendant's default.
We disagree with the trial judge's determination that plaintiff was under a legal duty to respond to defendant's letter of May 19, 1972 and, therefore, hold that his silence was not an acceptance of defendant's offer to surrender and terminate the lease. In fact, plaintiff's actions indicated a contrary intent. Following the breach, when a third party (presumably a friend of defendant's) asked to see, and offered to rent, the apartment leased to defendant, plaintiff refused to do so because it had been rented to defendant. Plaintiff did offer to show the third party other similar empty apartments available for rental, but presumably this person was not interested in any other apartment.
Nor are we able to agree with the trial judge that under the stipulated facts in this case plaintiff was under "a duty to rent the defendant's apartment to a third person who was ...