50 So. 314 | Ala. | 1909
This action was brought by the appellant against the appellee, claiming $50,000 as damages for the breach of a contract by which the defendant leased to the plaintiff, for a period of three years, with the privilege to the plaintiff to extend the period of leasing ten years, a certain storeroom, to be of certain dimensions, therein described, in a building then about to be erected by the defendant. The plaintiff claims that he was occupying; as a jewelry store, a certain storeroom in a building which stood on the ground to be occupied by - said new building, having a lease contract for three years; that as a consideration for said leasing contract with defendant the plaintiff gave up and surrendered his lease contract in the old building, and explained to defendant, at the time of entering into the lease, contract here- sued on, that the new store-room had to be of the dimensions contracted for in order to accommodate Ms fixtures, used in the jewelry business; that by reason of the fact that the storeroom as constructed was of less dimensions than that contracted for, he could not use his said fixtures therein; thati.the room as constructed is not reasonably suitable for the conduct of a jewelry business, because of the diminished floor space, and frontage available for display purposes, and complainant was forced to abandon the idea of occupying said premises for a jewelry store, and has ever
The leased store in the new building occupied the same location as had been occupied by the old store, where plaintiff had conducted his jewelry business for several years, and where he claims he had built up a good will. During the erection of the neAV building, the plaintiff had occupied a building on another street as a jeAvelry store, and after said erection has continued to occupy the same, claiming that he does so because of the unsuitableness of said new storeroom for his business. The plaintiff sought to introduce evidence showing the amount of his sales in the old building first occupied by him, and the amount of sales in the building-on another street occupied by him since he left the original store, and offered to shoAV that the falling off in sales resulted from the change of location. This was for the purpose of fixing the measure of his recovery, by the loss of profits which he Avould have made if he could have conducted his jeAvelry business in the neAV store. This evidence Avas excluded, and the assignments thereon constitute the first point insisted upon by the appellant as error.
It is difficult to see how any satisfactory theory could be worked out, from the evi.ience proposed, from Avhich to estimate with any de vrce of certainty the damages
We do not find anything in the cases cited by the appellant that conflicts with the salutary principles laid down in the cases cited by counsel, and in others which might be referred to. The case of Metzger v. Brincat, 154 Ala. 397, 45 South. 633, is probably the strongest one in the direction claimed by appellant; but in that case the contract specially provided against the renting of another fruit stand in the same building, and the profits Avere shown to be certain and definite, and the damage actually sustained was proved.
The court, in its oral charge, instructed the jury that, “If they found for the plaintiff, in estimating his damages they could only consider the three years of the term of the lease from October 1, 1906, and could not take into consideration any part of the ten years of the extension of the leasehold after the expiration of the three years.]” The appellee contends 'that this instruction was not erroneous, because at the time of the breach of the contract the appellant had a lease only for three years. But he had more. He had a lease for three years, Avith the privilege of extending it for ten years longer; and, if he was entitled to damages by reason of the fact that he could not occupy it as a jewelry store for three years, he Avas equally entitled to damages by reason of the fact that he could not, by the exercise of the option secured to him in the contract, occupy it as a jewelry store for the additional period of ten years. Whether he exercised the option or not, the contract
In estimating the damages for the breach of the said contract, the jury must necessarily consider the fact that the plaintiff had a right to occupy the premises for the additional period of ten years. If it is a valuable privilege, he is entitled to compensation for being deprived of it; if not, there is no damage. It Avill scarcely be denied that, if'the defendant had failed to erect the building at all, or had refused to allow the plaintiff to occupy it at all, he would have been entitled to damages for the entire breach of the contract. ■ We can see no difference, except in degree, between an entire failure and a partial failure. The court erred in the part of the oral charge above set out.
The judgment of the .court is reversed, and the cause remanded.
Reversed and remanded.