179 F. 868 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1910
The facts of this case are stated in a former opinion, reported in 165 Fed., at page 714. I was in a good deal of doubt at that time what measure of damage should be applied, and only with some reluctance reached the conclusion that one of the elements was the value of the unexpired term. The master was right in following the court’s instruction upon that point (whatever his private opinion may have been), and, while I am now obliged to disagree with hin^, I do so only because further examination of the question has convinced me that I should myself have followed the Pennsylvania rule. The point arises under a lease of lands in Pennsylvania, and the rule of the state court should be adopted. That, rule is definitely announced in Lanigan v. Kille, 97 Pa. 120, 39 Am. Rep. 797, and I therefore rely upon the authority of that case, and of the numerous kindred decisions referred to in the defendants’ brief, to sustain the proposition that, where an eviction has broken the lessor’s covenant for quiet enjoyment, the measure of damage is ordinarily the consideration paid by the lessee. Where the eviction is wholly or partly due to the fraud or collusion of the lessor, a different measure is proper; but, as the Supreme Court of Pennsylvania has decided that no fraud is to be found in the present case, Lánigan v. Kille furnishes the rule that should be applied. But I see nothing in that decision to prevent the allowance under the facts in proof of two other items, about which there is evidence, namely, the cost of removing from the premises, and the partial failure of consideration growing out of the Van Orden litigation. Based upon these sums I think the complainant is entitled to a decree.
I agree with the master that no fee should be allowed to the defendants’ counsel. They have been engaged neither in raising nor in protecting a fund for the benefit of creditors. They have been solely occupied in defending their individual clients from personal liability, and to these clients they must look for compensation.
The interlocutory decree — to which neither party made any objection in this particular — describes the fund to be accounted for as
