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Show PAGE THE DAILY RECORD FOUR , MONDAY, APRIL 23, 1973 I Financing Statements Bankruptcy In The Supreme Court Of The State Of Utah Mariam Air Products Company, a corporation, No. 12992 Plaintiff and Respondent, April 9, salesmn, Insurance agnt; Liab, $28,166.91; Asset, $345.00; Ex, $155.00; 300 - Richard D. Kelsey, 828 S. Windsor SLC; salesmn, FB FILED v. 299 - Francis Barelay Thomas, 4213 S. Brkr Rd. SLC; Insurance 1973 trk Lines; Llab, $5,647.00; Gill's Tire Market, Mar gene Kelsey, 1298 Claybrne SLC; reglstrd nurse, Cottnwd Hosp; Llab, $4427.00; Asset, $900.00; Ex, none; - Robert Henry Gray, 5567 S. 4170 W. Krns; used car lot man, Hlnckly Dodg; Llab, $19,886.54; Asset, $3,201.46; CALLISTER, Chief Justice: 302 Plaintiff initiated this action to recover the rental payments for the remaining six months of the term under a written lease of certain real property. The matter was tried by the court, and plaintiff was awarded judgment; defendant appeals therefrom. Ex, none; Defendant, lessee, leased the premises from the plaintiff, lessor, a for term of eighteen months, beginning March 20, 1970, at a rental of $300 per month. Defendant proceeded to conduct a retail and wholesale tire business on the premises. Sometime in November 1970, defendant ceased the retail operation but continued to use the premises as a warehouse. On January 28, 1971, plaintiff's general manager met defendant's agent at the.premises to inspect damages done to the walls in the front office area where the retail operations had previously been conducted. The damage had been caused by water leaking from an evaporative cooler located on the roof. '..Defendant had neglected to turn off the water line and to drain the cooler; the water had frozen and broken the fittings at the bottom of the tank, causing the water to leak into the building. Plaintiff's manager had the cooler repaired on March 4, 1971; thereafter he contacted defendant's agent to arrange for the painting of the damaged walls. Defendant's agent declined the offer, stating that the building had to be secured after hours. Defendant did not submit the March rental payment or any thereafter. Plaintiff's president attempted to contact defendant's president on several occasions; he finally found him in his office on April 28, 1971. The two visited the premises to inspect the damage. Plaintiff's president requested the key if it for the purpose of determining the cause of the damage; he stated-thaif it were defendant's fault were plaintiff's fault, he would repair it; however, it would be defendant's responsibility to effect the repairs; defendant readily agreed and gave the key. t Subsequently, plaintiff determined the water damage was caused by defendant's improper maintenance of the air cooler, a responsibility assigned ' to defendant under the written lease agreement. Thereafter, plaintiff made numerous attempts to contact defendant but without success; this action was commenced. At the expiration of the term of the lease, defendant had not attempted to remove its personal property, such as signs and tire racks from the premises. 303 - Jacob George Vigil, 870 Wood St.. Ogdn; apprentice weldx Liab, $5,078.05; d; Jetway-Clrfl- trial, From the evidence, the trial court found that it was defendant's intention to abandon the premises; and that plaintiff had neither acted to terminate the lease nor had it failed to perform any obligation thereunder so as to entitle defendant to terminate the lease. appeal, defendant contends that the acceptance of the key by plaintiff's president constituted a surrender by operation of law of the lease by the lessee and an acceptance by the lessor, and, thereafter, defendant was not liable for the rent. On Jr., $5,951.68; Asset, $566.50; Ex, none; - Dolores Vawdrey, 99 Oak St. Mdvl; hsewfe; Liab, $4,710.86; Asset, $566.50; Ex, $110.00; 306 furn ; 572 - David Michael Shaw, 838 to Intrlk Thrft; Jefrsn St. SLC furn 573 - Magic Wand of Utah, 430 Bntfl to Frmrs State Bk; equip 574 - Youth Forum N. M. 71, 419 P. 2d 450, 451 (1966). 3. "A constructive eviction cannot be predicated on a condition arising from a want of repairs which it is the duty of the tenant to make." 49 Am. Jur. 2d, Landlord and Tenant, Sec. 315, p. 333. Taft 71 Inc., to Zions Frst Natnl 576 - Dwayne F. & Geraldine Mac Fadzen, 518 E. 3900 S. SLC to Interlk Thrft; tv - Willis H. Howard, 1601 E. 4500 S. SLC to Intrlk Thrft 577 furn 578 - Harold A. Barker, 345 Rsvlt SLC to Intrlk Thrft; furn - The Store, 3167 E. 3300 Bk & Trst Co; 579 New Corporations 59284 - ROCKY MOUNTAIN S. SLC to Vly equip RECREATE 1045 S. Main St. SLC; Lynn D. Noren, 6096 S. 2230 E. SLC; Rich Poll, Mrgn Ut; Ireva Petty, 1680 E. 4500 S.; INC. 59285 - HANDLING AMERICAN PACKAGING CO. & 1946 Lgnvw INC. Dr. SLC; Kenneth Rolland Zimmerman, 1946 Lngvw Dr. SLC; Carol Wall Zimmerman; Ronald N. Spratling, Rd. SLC; 59286 - 4115 Gary Jr., LAMINATED BUILDING 59287 - CAPSTONE ENTERPRISES 7181 S. Creignton Way SLC; Joseph Wayne Haws, 19601 INCORP, Constellation La. Huntingtn Beach CA: 10062 Theseus, Hntngtn Beach R. Gary Owens, Vern Maeser Young, 7181 Crelghtn 59288 - Way SLC; EUROPEAN IMPORTS, LIMITED, 808 S. Main St. SLC; B. Robert Clark, 875 Donnr Way 'N. 1203 SLC; Steven R. Harris, 10364 Camatn Dr. Sndy; David J. Clrk, 875 Donnr Way N. 809 SLC; 59289 - SKYPARK MANAGEMENT, 117 E. 1800 S. Bntfl; Robert S. Hosking, 115 S. 750 E. Bntfl; Wayne Witt, 117 E. 1800 s. Bntfl; Mary Kathlene Witt, 117 E. 1800 S. Bntfl; INC. 580 - Howard D. Rowley, 1757 S. 1700 W. W. Jrdn to Zions Frs Ntnl Bk; empr 584 - Donald Stuart, 6920 Catherine & S. Brkhl Dr. SLC to Paclfc Fin; furn 585 - William A. & Dina VanKomen, 333 "I" St. SLC Capitl Thrft to Ln; furn & 586 - De Ette Jenkins, 2208 E. 6380 S. SLC- to Admrl Indus Crdt Co; hhg - - Randy Ray Rlchins, 4571 S. 2nd E. SLC to CIT Fin Serv; 587 stereo 588 - Cheryl 4347 S. 1230 Thrft 589 & De to Librty Land, Corp; hhg - Mike 3900 S. & Ln Elaine W. SLC J. SLC McLelland, 881 to Captl E Gds Supply Leas; machn 593 - J S. 700 W. Co; tretr B Constrctn Co, 3679 to Scott Machnry SLC 596 - M. Gerry Ashman, 3291 S. 40th W. SLC to Quality Accept Corp; machn - Charles Industries Inc., 2125 S. 400 W. SLC to Quality Accept Corp; equip 597 4. i i 603 - Kenneth Y. Moody, 5615 Laurlwd St. SLC to MFT Leas; equip 604 - Ralph Hill Benefl Life Bldg Leas; equip Agency, SLC to MFT i Be sure your WILL is written by a Utah attorney R. L. Tuckett, Justice $ Thrft Thrft; furn 305 - Noel Wayne Vawdrey 99 Oak St, Mdvl; mechanic, Ellett, Justice Utah2d'2407T52l 272 P. 2d 173 (1954). 2. Coffin V. Fowler, Alaska, 483 P. 2d 693, 693 (1971); Noce v. Stemen, 77 571 - Eugene E. Armijo, 42.92 Benvlew Dr. Grngr to Intrlk new state, they should revise their Wills. If you recently moved into Utah, make sure your Will is reviewed by a Utah attorney! Its important. The laws of the state where you previously lived may differ from those of Utah. And there may be other complications, too. 2 I Bk & In almost every case where people move into a Crockett, Justice, having disqualified himself, does not participate herein . i 575 - Wayne L. & Linda Cox, 412 E. Warnck SLC to Intrlk F. Henri Henriod, Justice 1. 1098 - Ernest Hale McDowell, Ephraim; apprentice weldr, In the instant action, the finding of the trial court that plaintiff had not accepted a surrender of the lease is supported by substantial evidence in the record and consequently will not be disturbed on appeal. Defendant's claim of a constructive eviction, under the circumstances revealed by the record, is without merit. The judgment of the trial court is affirmed. Costs are awarded to plaintiff. WE CONCUR: A. H. V.C toward, Sndy to Vly equip S. The mere acceptance of keys by the landlord, without more, neither terminates a lease, nor relieves the tenant of his obligation. The burden is on the party, relying on a surrender of a lease, to prove it; and the proof must be clear where the surrender is to be inferred from circumstances inconsistent with the intention to perform. The question of whether the acts and circumstances constituted a surrender and acceptance is one for the fact finder. I 570 - Bert Bk; Feterbilt Inc; Llab, I ! Asset, $345.00; Ex, 85,00; Walter Hansen & Sons Machn; Liab, $9,630.67; Asset, $1,172.00; Ex, $700.00; i boat Bk; Mdvl 304 t t to Zlons Frst Natnl SLC St. CA; In Belanger v. Rice, this court observed that a surrender of a lease by operation of law results from acts which imply mutual consent independent of the expressed intention of the parties that their acts shall have that effect. The intention of the landlord to accept the tenant's surrender of the premises is important on the question of surrender by operation of law, and a surrender will not be implied against the intent of the parties, as manifested by their acts. All the facts must be considered in determining the legal effect of the landlord accepting the keys, for to work a surrender the keys must be both offered with the proper intent and accepted with the proper intent. St. W. 500 S. SYSTEMS, INC. 171 N. 1st E. Hyde Prk; George B. Nelson, 171 N. 1st E. Hyde Prk; John ?. Nelson, 24 W. 2nd N. Hyde Prk; Cecil 0. Balls, 216 E. 3rd N. Hyde Prk; two defenses were asserted: (1) that by giving the key to the premises, defendant had surrendered the lease and plaintiff had accepted; (2) that the damage to the walla in the front office rendered the premises unusable and constituted a constructive eviction. At the - 301 L. M. Cummings, Clerk Defendant and Appellant. 560 - Gerald D. Black, 250 . Va8hn Dr. SLC to Natnl Fin Co; fum 567 - Paul R. Feeler, 460 I Diamnd Way Trst Co; empr Asset, $320.00; Ex, none; L r L First Security Fini Security First Security First Security Bank Stale Slate Bank of Utah, N.A. Bank Bank of Springville of Bountiful, N.A. |