Opinion
March 2, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 395
Creamer & Creamer, Denver, for plaintiff in error.
Helmick, Evans & Conover, Frederick K. Conover, Denver, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
International Realty Company, as lessor, brought this action against The Grolier Society, Inc., as lessee, to recover rent allegedly due under a written lease. Trial was to the court. Judgment was entered in favor of the lessor and the lessee seeks reversal.
The parties entered into a lease agreement for space in a Denver office building. The term of the lease was April 1, 1961, to April 1, 1966. The lessee occupied the premises until sometime in January, 1965, when it removed its telephones, furniture, and personnel and vacated the premises. The lessee continued to pay the rent as it became due through October, 1965. In late October, the lessor removed a glass panel from a partition which separated the leased premises from the corridor of the building and replaced it with a movable metal panel. Lessor also removed lessee's name from the building directory. The lessor remodeled the premises in January, 1966, and in late February, 1966, leased the premises to a new tenant. The judgment entered was in the amount of the unpaid rentals due under the lease for the full term of the lease, less the amount of rentals received from the new tenant during this term.
I
The lessee claims that the acts of the lessor deprived the lessee of its right to peaceful possession and quiet enjoyment of the premises and constituted a constructive eviction. The lessee contends that it was thereby relieved of liability for rents accruing thereafter. In support of this argument, lessee relies upon the general rule that the reentry of leased premises by the landlord constitutes an eviction of a tenant and relieves the tenant from all liability for rent to accrue in the future. Milheim v. Baxter, 46 Colo. 155, 103 P. 376, and Boyle v. Bay, 81 Colo. 125, 254 P. 156. This general rule is not applicable where the parties to the lease have, by express agreement, contracted to the contrary. Symes Investing Co. v. Wheelock, 55 Colo. 459, 136 P. 65, and Ruston v. Centennial Real Estate and Investment Co., 166 Colo. 377, 445 P.2d 64. Paragraph 19 of the lease involved here provides:
'* * * if Lessee shall * * * vacate said premises before the end of the term of this lease, Lessor may, at its option and without notice, and using such force as may be necessary, enter said premises, remove any signs of Lessee therefrom, and re-let the same, or any part thereof, as it may see fit for the account of Lessee, without thereby avoiding or terminating this lease, and, for the purpose of such re-letting, Lessor is authorized to make any repairs, changes, alterations or additions in or to said demised premises, as may, in the opinion of Lessor, be necessary or desirable for the purpose of such re-letting, and if a sufficient sum shall not be realized from such re-letting * * * each month to equal the monthly rental agreed to be paid by Lessee under the provisions of this lease, then Lessee agrees to pay such deficiency each month upon demand therefor.'
It is undisputed that the lessee vacated the leased premises before the end of the term. Paragraph 19 specifically authorized the lessor upon such vacation of the premises by the lessee to re-enter the premises and re-let the same without terminating the lease. In the Ruston case, the Supreme Court considered the effect of a provision in a lease similar to paragraph 19 of the present lease. The Court there held that the rights of the lessor and lessee were controlled by the written agreement and were not dependent upon general rules applicable in the absence of such express agreement.
The lessee also argues that the provisions of paragraph 19 are invalid; however, our Supreme Court has recognized the validity of provisions in a lease where the lessor and the lessee have defined their rights and obligations. Ruston, supra.
II
Lessee also argues that the trial court erred in finding that there was a valid written lease between the parties. The basis of this argument is that the printed form states 'by and between THE MURCHISON DENVER COMPANY, a Colorado corporation, hereinafter called 'Lessor,' and Grolier Society, Inc., hereinafter called 'Lessee'; '. The lease is signed 'The International Realty Company successor to The Murchison Denver Company' and the lease provides that all of its terms are binding upon the successors and assigns of the parties. It appears from the record that throughout the period of the lease the plaintiff, International Realty Company, owned and managed the building, and that the lessee made its rental payments to the plaintiff. Under these circumstance, the reference to the lessor as The Murchison Denver Company in the body of the lease is not fatal to its validity.
III
The lessee contends that the lessor's action for rent was barred by res judicata because a second claim set forth in the complaint was dismissed with prejudice.
The complaint, as originally filed, alleged two claims for relief. The first claim was against the lessee for rent due under the lease agreement. The second claim was against A. C. Rollnick, Phillip J. Rollnick, Norman J. Gray, Barbara Gray, Philro, Inc., and Aldora, Inc. The second claim incorporated the averments of the first claim and further alleged that these defendants had commercial space available for rental and, with knowledge of the existence of the lease between the plaintiff and defendant, intentionally induced defendant Grolier to breach its lease with the plaintiff.
Immediately prior to trial, the lessor moved to dismiss its second claim for relief. The court granted the motion and entered an order dismissing lessor's second claim with prejudice. The first claim is one in contract and the second claim is one in tort against different parties. The subject matter and causes of action are different and, therefore, the dismissal of the tort claim with prejudice is not a bar to the first claim. The doctrine of res judicata and collateral estoppel have no application to the facts of this case.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.