Marathon Oil Co. v. Rone (Tex.Civ.App.1935), 83 S.W.2d 1028, 1031, writ fef. If he elects this remedy and has relet the premises for the entire unexpired term, the measure of lessor's damage is generally the difference between the rental originally contracted for and that realized from the reletting. Early v. Isaacson (Tex.Civ.App.1930), 31 S.W.2d 515, 517, writ ref. (criticized, 9 Tex.L.Rev. 578, not on this point); Marathon Oil Co. v. Rone, above; Marathon Oil Co. v. Edwards, Tex.Civ.App., 96 S.W.2d 551, writ dism.; C. R. Miller & Bro. v. Nigro, Tex.Civ.App., 230 S.W.2d 511, 512; Racke v. Anheuser-Busch Brewing Ass'n., 17 Tex.Civ.App. 167, 42 S.W. 774; Robinson Seed & Plaint Co. v. Hexter & Kramer (Tex.Civ.App., 1914) 167 S.W. 749, 751, writ ref. Even where the lease contract, as here, authorizes the landlord to relet for the remainder of the term, however, he is not required to do so. He has the option to so act. Silbert v. Keton (Tex.Civ.App., 1930) 29 S.W.2d 824, 826, writ ref.

Contrary to this sweeping assertion it is apparent, that in Texas, there is no general obligation on the part of the landlord when confronted with an abandonment by a lessee, to mitigate damages by procuring a new or substitute tenant. Marathon Oil Co. v. Edwards, 96 S.W.2d 551 (Tex.Civ.App. — Amarillo 1936, writ dism'd); Early v. Isaacson, 31 S.W.2d 515 (Tex.Civ.App.-Amarillo 1930, writ ref'd). Rather, it is only where there has been a reentry of the vacated premises by the landlord will a duty to mitigate be imposed. Evons v. Winkler, 388 S.W.2d 265, 269-70 (Tex.Civ.App. — Corpus Christi 1965, writ ref'd n. r. e.); Stewart v. Kuskin and Rotberg, Inc., 106 S.W.2d 1074 (Tex.Civ.App.-Texarkana 1937, no writ); See, Rohrt v. Kelley Manufacturing Co., 162 Tex. 534, 349 S.W.2d 95 (1961) (by implication); White v. Watkins, 385 S.W.2d 267, 270 (Tex.Civ.App.-Waco 1964, no writ) (by implication).

"In order for there to be a termination of a lease contract or a surrender thereof, it must be by the mutual agreement of the lessor and the lessee, — that is there must be a meeting of the minds. Barret v. Heartfield, supra; Early v. Isaacson, Tex.Civ.App., 31 S.W.2d 515, Er.Ref.; 27 Tex.Jur., p. 312, Sec. 183. Upon conflicting evidence this was an issue for the trier of the facts.

perty and relet the premises, the proper measure of damages under Texas law is the difference between the amount of rent originally contracted for and that realized from reletting. See id. at *3; Crabtree v. Southmark Commercial Mgmt., 704 S.W.2d 478, 480 (Tex. App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.) (holding that, when a tenant breaches a lease by abandoning the property and terminating rental payments and the landlord relets the property to another tenant, the landlord "can recover the contractual rent reduced by the amount to be received from the new tenant" (citing Maida v. Main Building of Hous., 473 S.W.2d 648, 651 (Tex. App.—Houston [1st Dist.] 1971, no writ); Speedee Mart Inc. v. Stovall, 664 S.W.2d 174 (Tex. App.—Amarillo 1983, no writ))); White, 385 S.W.2d at 270 (holding that where a landlord relets the premises, "the measure of lessor's damage is generally the difference between the rental originally contracted for and that realized from the reletting" (citing Early v. Isaacson, 31 S.W.2d 515, 517 (Tex. App.—Amarillo 1930, writ ref.))). The appropriate measure of damages in this case is the amount that Diamond Spa would have owed REYN under the Lease for the remainder of the Lease term after Diamond Spa breached the Lease reduced by the amount REYN received from its subsequent tenants.

The courts of this state have adhered to the traditional rule of imposing no duty to mitigate. Early v. Isaacson, 31 S.W.2d 515, 517 (Tex.Civ.App. — Amarillo 1930, writ ref'd); Metroplex Glass Center, Inc. v. Vantage Properties, Inc., 646 S.W.2d 263, 265 (Tex.App. — Dallas 1983, writ ref'd n.r.e.); Racke v. Anheuser-Busch Brewing Assoc., 17 Tex. Civ. App. 167, 42 S.W. 774, 775 (Galveston 1897, no writ). An exception to the traditional rule, however, has been recognized when a landlord pursues a remedy in contract.

A surrender by operation of law may be effected through the abandonment of the premises by the tenant and re-entry by the landlord. 2 Tiffany, Landlord and Tenant, § 190 c, p. 1332 et seq., and cases collected in 51 C.J.S. Landlord and Tenant, § 125, n. 18, and 16 R.C.L., p. 1154, n. 12; see also Comment in 9 Tex.L.Rev. 578. Decisions such as Early v. Isaacson, Tex.Civ.App., 31 S.W.2d 515, er. ref., treated in the last mentioned Comment, do not establish the contrary, however much they purport to condition the effect of the change of possession upon the intent of the parties concerned. In the instant case, the lessee of a 'prepaid' lease, after receiving from his ex-employer reimbursement for what he had prepaid, in addition to enjoying free occupancy of the premises for about three months, is 'happy * * * to get out from under' and upon making an obviously invalid assignment of the lease, vacates the premises, giving no further indication at any time of claiming continued right therein.

Their opinions do not have stare decisis effect. Rather, stare decisis binds us to the "traditional" rule that the landlord owes no duty to mitigate, for the supreme court established that principle by its refusal of writ of error in Early v. Isaacson, 31 S.W.2d 515, 517 (Tex.Civ.App. — Amarillo 1930, writ ref'd). See Tex. R. Civ. P. 483 (1927, repealed 1986).

'(1, 2) When the tenant abandons the leased premises, it is the settled law of this state that the landlord may relet the premises by taking proper precaution not to create a surrender by operation of law. Early v. Isaacson, Tex.Civ.App., 31 S.W.2d 515; see criticism of this case 9 Texas Law Review 578. So, the mere renting of the filling station by appellant to third parties after appellees' default in the payment of their rent notes and after they and their sublessee vacated the premises in violation of their contract did not terminate the rent contract and did not release appellees from the payment of the notes in controversy. Marathon Oil Co. v. Rone, Tex.Civ.App., 83 S.W.2d 1028.'

Cf. Rohrt v. Kelley Mfg. Co., 162 Tex. 534, 349 S.W.2d 95 (1961). Our question therefore narrows as to whether lessor had the duty to use reasonable diligence to re-let the premises after lessee abandoned same in June, 1964. It has been held that where the lease contract authorizes the landlord to re-let for the remainder of the term, he is not required to do so, but merely has the option to so act. White v. Watkins, Tex.Civ.App., 385 S.W.2d 267, no writ; Wukasch v. Hoover, Tex.Civ.App., 247 S.W.2d 593, aff. Hoover v. Wukasch, 152 Tex. 111, 254 S.W.2d 507 (1953); Early v. Isaacson, Tex.Civ.App., 31 S.W.2d 515, writ ref'd; Silbert v. Keton, Tex.Civ.App., 29 S.W.2d 824, writ ref'd; Willis v. Thomas, Tex.Civ.App., 9 S.W.2d 423, writ dism'd; 126 A.L.R. 1219. The record is silent as to what, if anything, occurred when lessee abandoned the premises.

In the case at bar, the jury found that appellee and appellant had reached an agreement to terminate said lease, and, by their answers, found that such agreement constituted surrender. Barret v. Heartfield, Tex.Civ.App., 140 S.W.2d 942 (wr. ref.); Early v. Isaacson, Tex.Civ.App., 31 S.W.2d 515 (wr. ref.). The Supreme Court, in Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 164 S.W.2d 488, 491, stated: