Patterson v. City of Boston

| Mass. | Apr 4, 1838

Shaw C. J.

delivered the opinion of the Court. One large item of damage claimed by the plaintiff, but rejected by the Court of Common Pleas, was for the reimbursement of a sum of money paid to Parks, the landlord, for a new front wall to the warehouse, rendered necessary by removing the old front wall to widen the street, and alleged to have been paid by the plaintiff, in pursuance of his covenant to deliver up the premises at the end of the term, in as good order and condition &c., reasonable wear and loss by fire excepted.

Whether this covenant of the lessee, bound him to rebuild the front wall, on the new line fixed for the street, and whether he had rightfully and in pursuance of a legal obligation, paid for rebuilding it, are questions which would require more consideration, if it were necessary now to decide them. But if Parks, as landlord and general owner of the estate, rebuilt that front wall, on the ground of repairing the damage done to his inheritance and freehold,, as he well might, it being under a short lease for years, and claimed the cost of it as an item of his own damage, against the city, and' had that claim allowed to him, it seems very clear, that he could not claim it again of the plaintiff as tenant, and through him of the city, whether the covenant bound the tenant to this extent or not. The questions of difficulty in regard to the covenant to leave the premises in as good order and condition &c., are these ; first, whether the building of a new front wall on a new line, fixed by lawful authority, is in the nature of reparation, keeping the estate in as good a condition as it was ; or whether it was not rather a new-erection, in the nature of addition or improvement; second, whether if a damage is done by. the public, in pursuance of a lawful authority, for which the landlord has a plain and adequate remedy, it is damage, which a lessee under such a covenant is bound to make good. He could not leave the front wall in the same, or in as good a condition, because he was prohibited by an authority paramount, both to his own and his landlord’s rights.

But as already suggested, this case does not necessarily involve this question, because either the landlord or the tenant, each on account of his own interest, would have a right, under such circumstances, to rebuild the wall, as being necessary to the enjoyment of the estate ; the tenant in the first instance, as being in possession, and having a paramount right of occupation and enjoyment; but if he declined, then the landlord would have the right to do it, for the preservation of his estate. In either case, it would seem to be a proper item of claim for damage upon the city ; but for the same' item of damage, the city ought not to be twice charged. In this view therefore, whether Patterson was bound by his covenant to rebuild the wall or not, as between himself and Parks, yet if be did pav Parks for rebuilding it, and Parks has not been paid for the same by the city, it is a proper item of claim against the city, to the extent of that proportion of it, which the complainant Patterson ought to pay. It appears that there were three tenants, to whose enjoyment of their respective interests as tenants in possession, this wall was necessary, Patterson, who occupied the lower floor and cellar, Barnard and Dutch, who occupied the second story, and Parks himself, who occupied the third. Such proportion of the expense as Patterson would be bound to pay, upon an equitable apportionment, was a damage done to his term, and whether he built it himself or paid Parks for building it, is immaterial, unless Parks as landlord and general owner built it on his own account, and has already received payment for it, from the city. The same rule applies to any other expenses, if any, which the plaintiff has paid to Parks, for repairing damage done to other parts of the tenement.

Another question arises, as to the length of time, for which the plaintiff can claim, as having been deprived of the use of his warehouse for repairs, after the front of it was taken down, for widening the street. The Court are of opinion, that it should be computed for such time as would be reasonably necessary to remove, and make the repairs, and move back again ; and that he is not entitled to recover for the loss of his tenement from July 1829 to September 1830, if all that time was unnecessary and unreasonable for the purposes above stated.

The Court are of opinion, that there was error in the instruction of the court below, that by taking a part of the leased premises for public use as a highway, the tenant was excused from the payment of rent and taxes ; on the contrary, they are of opinion, that the lease remained in force, and the tenant continued liable for rent and taxes, and for the performance of his other covenants, as if the estate had not been so in part taken for public improvement.

The plaintiff therefore was entitled to be remunerated in damages, for (he loss of the use of his tenement during the time he was necessarily deprived of it, together with the diminished value of the premises, caused by the taking oi part, for the residue of the term, he continuing to pay at the same rate the rent and taxes.

He is not specifically to recover back the rent and taxes paid by him whilst he was necessarily deprived of the use of the tenement, because it might be worth more or less than the rent and taxes, and the value to him, and the loss of that value for the time mentioned, was the measure, of bis claim to indemnity.

As to the complaint for contingent damages, for loss of custom, no very definite rule can be laid down, and as there must be a new trial on other grounds, it is not necessary. As a general rule it may be stated, that direct and proximate damages are to be looked to, in such cases, and there seems to be no objection to the directions given by the court below, on this subject. But cases depend so much upon their own circumstances, that very definite rules a priori cannot be expected.

In regard to the directions of the court as to the use which juries may make of their own general knowledge and experience, it seems to us that they are not open to exceptions. Juries would be very little fit for the high and responsible office, to which they are called, especially to make an appraisement, which depends on knowledge and experience, if they might not avail themselves of these powers of their minds, when they are most necessary to the performance of their duties. If a juror knows any particular fact, bearing upon the questions at issue, it is proper for him to state it in open court as a witness, as well that the testimony may go to his brethren under the sanction of an oath, as that the party against whom it bears, may have the privilege of cross-examining, and that the counsel and the court respectively may be informed of the evidence on which the jury is to act, and make such use of it, as their respective duties may require.

Exceptions sustained. Verdict set aside and a new tria, granted, to be had at the bar of this Court.