94 Iowa 322 | Iowa | 1895
I. The following is a clause of the lease, as to repairs: “If anything breaks in said mill,
III. The rule is invoked that, if damages could have been avoided by a trifling expense or by ordinary effort in repairing the dam, plaintiff was required to do so, and then the measure of damage would be the cost of such expenditure or effort, and damage that could have been prevented by such diligence is not recoverable. It i-s said in Mather v. Butler Co., 28 Iowa, 253, that this doctrine should be cautiously applied; and we do not determine its applicability to the facts of this case, for it does not appear to have been in issue in the case, or in any way to have been .called to the attention of the court below, or in any way noticed by it. It is now too late to present it. In the same connection we may dispose of the claim that, “if there be no covenant to repair, the tenant is bound to make repairs.” In this case there is a covenant to repair. It is again said, “the mere fact that Tritz was obligated, in the lease, to make repairs, does not exonerate Leick from legal burdens.” Some' authorities