rent claim of $3,500, alleged to be due that company under the terms of the lease dated July 28, 1930, between that company and the defendant, whereby the Manchester Auto & Machine Company leased to the defendant the western section of building located at Nos. 916 to 924 Manchester boulevard, Pittsburgh, Pa., being 70 feet wide and 100 feet long, for the term of two years, commencing October 10, 1930, and ending October 10, 1932, at a total rental of $8,400, payable in advance at the rate of $350.
The lease further provided as follows: "It is further agreed that if * * * a receiver be appointed for tenant, then and in such case the entire rent for the balance of said term shall, at the option of the lessor, at once become due and payable, as if by the terms of this lease it were all payable in advance; or at the lessor's option, this lease shall become null and void."
The ancillary receivers went into possession of the leased premises, and occupied them until December 7, 1931, and paid all rent due thereon up to that time.
The receivers are contesting the allowance of this rent claim by this court, because: (1) They aver that the Manchester Auto & Machine Company accepted a surrender of the lease. (2) This rent claim should, under the order of this court and that of the primary jurisdiction, be presented to the court of primary jurisdiction for adjudication. (3) There is no way now of determining the sale price of distrainable goods that were on the demised premises and included in the lump sale of the assets of defendant in the court of primary jurisdiction.
The court heard the testimony offered by the parties. The question involved is one of Pennsylvania law; and, while we might properly leave the claimant to present its claim in the court of primary jurisdiction, Superior Cabinet Corp. v. American Piano Co. (D.C.) 39 F.2d 87, as provided for in the original orders made both in this court and that of the primary jurisdiction, we have concluded that we should, for the convenience of the parties here, pass on the single question of whether the Manchester Auto & Machine Company has, in fact, any legal claim for the balance of rent accruing after the date the ancillary receivers surrendered possession of the leased premises.
We have carefully considered the testimony offered on both sides, and find, as a matter of fact, that the Manchester Auto & Machine Company resumed possession and occupancy of the leased premises on and after December 7, 1931, the date of surrender by the receivers, and used the same for its own purposes. This fact resolves the case against the claimant. It is well-settled law that a landlord who accepts surrender of a lease cannot claim for rent thereafter accruing. Wilson v. Pennsylvania Trust Co. (C.C.A) 114 F. 742; Re Winfield Mfg. Co. (D.C.) 137 F. 984; Re Graebing Drug & Distributing Co. (D.C.) 1 F.2d 397.
The rule to show cause granted on the petition of the Manchester Auto & Machine Company will therefore be discharged. An order may be submitted accordingly.
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