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Brown v. Wolfson

Court of Appeals of Ohio
Mar 9, 1959
159 N.E.2d 922 (Ohio Ct. App. 1959)

Opinion

No. 8557

Decided March 9, 1959.

Landlord and tenant — Rescission of rental agreement — Re-entry and rerental to new tenant by landlord — First tenant not liable for landlord's losses by rerental contract — Landlord not entitled to retain first tenant's payment of rent.

Where, after the execution of an agreement for the rent of an apartment for a definite period of time and payment of the first month's rent, on the same day and before taking possession the tenant offers to rescind the contract and to return the keys for return of his first payment of rent, and the landlord, although refusing the request, re-enters and rerents the premises to a new tenant, for the same period but on less attractive terms, such re-entry and rerental constitutes an election by the landlord, and he cannot, thereafter, hold the first tenant responsible for his losses due to the rerental agreement, nor is he entitled to retain the rental payment made by the first tenant.

APPEAL: Court of Appeals for Hamilton County.

Messrs. Simpson, Droder Jacobs, for appellee.

Messrs. Schear Klein, for appellant.


This is an appeal on questions of law from the Municipal Court of Cincinnati. The facts briefly stated are that, on September 14, 1958, the defendant Wolfson rented an apartment to plaintiff Brown for $75, the term to begin September 21, 1958, and ending October 21, 1958. The tenancy was from month to month. On the same day that the contract was consummated, Brown learned that he was being transferred in his position and wanted to rescind his contract of rental. He offered to return the keys to the apartment for the return of the $75 rental which he had given Mrs. Wolfson. Mrs. Wolfson refused to accept his proposition of rescission. In the opinion of this court, the contract of rental with plaintiff, therefore, remained in full force and effect, and Mrs. Wolfson had no right to rerent the apartment to a new tenant, who took possession on September 21, the date when the rental agreement with plaintiff was to commence, thereby destroying completely plaintiff's leasehold.

There is no question that if defendant Wolfson had not rented the apartment for the term beginning September 21 and ending October 21, she could have retained plaintiff's $75; but, having rerented to some one else for the same period, she interfered with plaintiff's right to possession and should return his $75. Defendant was not required to rent to anyone else for the period from September 21 to October 21. She could have insisted on performance of the contract of rental by plaintiff and rented the apartment after October 21. She did not elect to do this. She rented the apartment on less attractive terms to the new tenant, and now seeks to hold plaintiff responsible. This we do not think she can do.

Finding no error in the record prejudicial to appellant, we affirm the judgment of the Municipal Court of Cincinnati.

Judgment affirmed.

MATTHEWS, P. J., and O'CONNELL, J., concur.


Summaries of

Brown v. Wolfson

Court of Appeals of Ohio
Mar 9, 1959
159 N.E.2d 922 (Ohio Ct. App. 1959)
Case details for

Brown v. Wolfson

Case Details

Full title:BROWN, APPELLEE v. WOLFSON, APPELLANT

Court:Court of Appeals of Ohio

Date published: Mar 9, 1959

Citations

159 N.E.2d 922 (Ohio Ct. App. 1959)
159 N.E.2d 922