Fisher v. Goebel

| Mo. | Mar 15, 1867

Holmes, Judge,

delivered the opinion of the court.

The plaintiff had leased from the defendant the premises called the “Flora Garden,” situated on the corner of Seventh street and Geyer avenue, in 1855. There was a cut some fifteen or twenty feet deep on Geyer avenue, and the lessor covenanted in the lease that he would build at his own expense a rock wall and fence on that side; and the lessee* covenanted to keep the leased property in a state of repair-.. Some two years after this wall was erected, it fell down by-parts by the action of the elements. The defendant was-called upon to rebuild it, but before this was done the plaintiff abandoned the premises and surrendered his lease.

The plaintiff proceeds on the assumption that the covenant-, of the lessor had been broken by the falling down of this wall,. and that it belonged to the lessor and not to himself to rebuild it. The case appears to have been tried on this theory, and the principal matters submitted for decision concern the instructions of the court on the measure of damages.

The jury were instructed for the plaintiff upon the basis that the proper measure of damages was the difference between the rent and value of the leasehold premises with a good and permanent wall standing, and their value in the condition in which they were left without such wall.

The defendant’s instructions were predicated upon the rule that only the actual damages resulting directly from the defendant’s default in relation to the stone wall, to be measrrred by what it would cost to rebuild the wall, together with any loss that may have been sustained as the direct and immediate consequence of the insufficiency of the wall and the breach of the covenant, could be recovered.

The jury found a verdict for the plaintiff for $4,750 damages, and upon a remittitur of $2,375 the defendant’s motion for a new tidal was overruled, and a judgment rendered for the balance.

Under these covenants, ifimight admit of serious question whether the plaintiff, after he had accepted the wall without remonstrance, and safely occupied the premises for two years, was not bound under the covenant for repairs to rebuild the. wall himself, or at least to put and keep it in a state of repair, charging the defendant with damages only for the original deficiency of structure. But it appears to have been left to the jury under the instructions to say whether the covenant for the building of a wall had been complied with, and whether the plaintiff had sustained damage in consequence of a breach thereof; and the case will be considered here only on the matter of the damages.

Upon the facts of the case, we think the instruction given for the plaintiff allowed a larger latitude and measure of damages than the justice or the law of the case will warrant, and that the rule given in the defendant’s instructions should have been adopted.

In Yivian v. Champion, 2 Ld. Raym. 1125, it was said that the proper measure of damages in a breach of such covenants was what it would cost to put the premises in repair. This rule appears to have been slightly modified in some modern cases on covenants by tenants for repairs, but, as we conceive, not to the extent implied in this instruction for the plaintiff.—Smith v. Real, 9 Excheq. 165; Penley v. Watts, 7 Mees. & W. 601; Worcester v. Rowland, 9 Car. & P. 739; Walker v. Swayzee, 3 Abb. Pr. 136" court="None" date_filed="1856-07-15" href="https://app.midpage.ai/document/walker-v-swayzee-6115193?utm_source=webapp" opinion_id="6115193">3 Abb. Pr. 136. It has been said to cover such damages as are direct and immediate, but not remote, speculative or contingent damages, or such as might have been avoided by the other party—Damon v. Loker, 17 Pick. 288. It has been allowed to include such losses in addition to the actual cost of repair as were necessarily sustained during the periods required for making repairs, and some compensation for any loss of the use of the premises whilst they were undergoing repairs—Middlekauf v. Smith, 1 Md. 327. But we find no satisfactory authority for the position that the tenant in such case may wholly neglect to make the necessary repairs himself, allow his leasehold to depreciate in value, or his business to be broken up and abandon his lease, and then claim for his damages the whole loss so incurred. The greater part of such damages as these might have been avoided, and are to be attributed to his own fault; and for that he must be content to bear the loss himself—Thompson v. Shattuck, 2 Metc. 615. As a general rule, we think it may be said that the recovery must be confined to the actual damages, which are the direct, immediate or proximate, and unavoidable consequence of the breach of the covenant—Sedgw. Dam. 195-9.

The evidence shows that this wall might have been rebuilt at a cost of some six or eight hundred dollars, and we are inclined to think that the plaintiff has recovered a larger amount than he was justly entitled to claim, notwithstanding the remittitur.

For these reasons the judgment will be reversed and the cause remanded.

The other judges concur.