Poboisk v. Colon , 292 Minn. 451 ( 1972 )

195 N.W.2d 431 (1972)

Harry POBOISK, Respondent,
v.
Vernon R. COLON, Respondent,
William E. DeWolf, Appellant.

No. 43061.

Supreme Court of Minnesota.

January 21, 1972.

Andrew P. Engebretson, St. Paul, for appellant.

Robins, Davis & Lyons, St. Paul, for Poboisk.

Douglass, Bell, Donlin, Schultz & Petersen, St. Paul, for Colon.

Heard before KNUTSON, C. J., and OTIS, ROGOSHESKE and PETERSON, JJ.

OPINION

PER CURIAM.

Appeal by defendant William E. DeWolf from a judgment in an action by plaintiff for rent due under a written lease. Plaintiff's motions to strike the allegation in defendant DeWolf's answer that plaintiff failed to mitigate damages, and for summary judgment against defendants DeWolf and Vernon R. Colon, were granted. During the pendency of the appeal, defendant Colon satisfied the judgment, and only DeWolf has filed a brief requesting us to determine whether, and under what circumstances, a landlord has a duty to procure a new tenant for the purpose of mitigating the damages recoverable from the tenant who abandons the premises before the expiration of the term specified in the lease.

We regard the appeal as a request for an advisory answer to a hypothetical question since our examination of the entire district court file in this case clearly indicates that the trial court, upon the pleadings and answers to interrogatories submitted by plaintiff, was compelled to grant the summary judgment entered upon the ground that there was no genuine issue as to any material fact supporting any factual basis, such as plaintiff's acceptance of a surrender of the premises by reentry, that would have supported any duty or requirement on the part of plaintiff to mitigate damages. See, Gruman v. Investors Diversified Services, Inc., 247 Minn. 502, 78 N.W.2d 377 (1956); Haycock v. Johnston, 97 Minn. 289, 106 N.W. 304 (1906); Id., 81 Minn. 49, 83 N.W. 494, 1118 (1900); Annotation, 21 A.L.R. 3d 534, 539; 49 Am. Jur.2d, Landlord and Tenant, §§ 620, 621; 3 Tiffany, Law of Real Property (3 ed.) § 902; 52 C.J.S., Landlord and Tenant, § 498.

Affirmed.

TODD, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.