45 So. 633 | Ala. | 1908
The original bill in this case was filed by the appellee against the appellant. The bill alleges that on July 27, 1905, complainant had entered into a written contract, by which the defendant leased to him a certain fruit stand in the city of Mobile, and complain
The defendant filed a plea, alleging that complainant had formed a partnership with one Carmillers about the time he commenced said business, and said business had been conducted under the name of J. G. Brineat & Go., and that therefore the complainant was not affected by the matters complained of and not entitled to any action against respondent. This plea was held by the chancel
The record shoAVS an agreement betAveen the parties that the chancellor should render a decree “granting the complainant relief, and referring to the register of this court to ascertain what amount the defendant should pay to the plaintiff for the breach of the lease executed by the defendant to the complainant, and further ascertain Avhat amount, if any, the complainant should pay to the respondent for the rent of the property. This eliminated all questions as to the right of the complainant to recover, and simply left the amount to be ascertained. The appellee, then, very properly states, in his brief that “the main questions presented for revieAV are the exceptions to the register’s report as to the damages.” The register reported that the defendant should pay the complainant for the breach of the lease $1,000, and that the complainant should pay the defendant for rent $720, leaving a balance in favor of the complainant of $280. This report follows the agreement, and the decree thereon, literally; but the appellant insists, first, that the register’s report should not have been received, because it did not conform to the rule laid down in O’Neill v. Perryman, 102 Ala. 523, 14 South. 898. The remarks at the close of that opinion are based upon rule 90 of chancery practice (Code 1896, p. 1221) Avhich rule relates to accounts containing debits and credits, and goes on to state specifically that “a refer
Giving to the report of the register the effect of a verdict by a jury, and indulging the presumptions as to its correctness, in accordance with the numerous decisions of this court on that subject, we cannot say that the findings of the register are not supported by the evidence, nor that the damages awarded are excessive.— Danforth & Armstrong v. Tenn. & Coosa River Ry., 99 Ala. 322 (ninth headnote) 13 South. 51; Bell v. Reynolds & Lee, 78 Ala. 511, 56 m. Rep. 52; Id., 84 Ala, 496, 4 South. 703; Brigham & Co. v. Carlisle, 78 Ala. 244, 249, 56 Am. Rep. 28. The contract shows that the matter in the contemplation of the parties was that the business of the appellee should not be injured by renting a portion of the house to another party, and the evidence shows that the damages were ascertainable with reasonable certainty. The case of Delnise v. Long Island R. R. R. Co., 65 App. Div. (N. Y.) 487, 72 N. Y. Supp. 988; Id., 174 N. Y. 516, 66 N. E. 1106, referred to by counsel for appellant, was one where a railroad company had failed to deliver possession of a boot-blacking stand within the time agreed upon, when the other party re
This case, and others cited, are differentiated from the one now under consideration, in that in the present case there is evidence that the particular locality where this fruit stand was located had for years been a favored place for such business, on account, of being near the corner where passengers from the railroad station passed; that this particular stand had been previously occupied by the party whom Brincat had bought out, and to whom the defendant had rented that part of the building between plaintiff and said corner; that all fruit dealers in that locality had experienced a definite depreciation in business whenever a rival stand was placed between them and said corner; and it was also shown that this particular business experienced a like depreciation from the.time the rival stand was set up. The damage was consequently ascertainable with reasonable certainty, and was not speculative; and the contract had been made with a view to guard against that particular damage.
The decree of the court is affirmed.