Pewaukee Milling Co. v. Howitt

86 Wis. 270 | Wis. | 1893

PíNNey, J.

1. The meaning which appellant’s counsel contend should be given to the provision in the lease, the plaintiff agreeing to put in a water wheel of not less than fifty horse power, “ if required by the lessee,” to the effect that a formal notice that the wheel was required should have been given to the board of directors, inasmuch as it did not appear that any delegation of authority had been made to any one to receive such notice, is too narrow and technical. The defendant had a right, at his option, to have a new wheel of the described power put in the mill. The plaintiff is a manufacturing corporation, and request was made to its vice president and secretary to put in the wheel. This is clear from the evidence and from the contract they made with Blodgett to put in a wheel, etc., “ to the satisfaction of Mr. Howitt, lessee of the mill.” The transaction of business with such a corporation does not-require any such formality and strictness as that insisted on. It is enough that the request was made of its officers in charge of its business. The charge of the court on this subject was manifestly correct, and the defendant’s request made it the legal duty of the corporation plaintiff to put in the specified wheel and see to it that it met the requirements of' the covenant. There is nothing ambiguous in the covenant, and parol evidence to show why it was inserted in the lease was properly excluded.

2. It is contended that upon the refusal or neglect of a lessor to repair on receiving notice, the lessee is entitled to clo so at the former’s expense, and that such is bis duty where it may be done at trifling expense; that he cannot neglect it and recover greater damages, suffered in consequence of the premises remaining out of repair, than such repairs would cost. Suth. Dam. § 873, and cases cited in note. ¥e do not think the present case falls within the rule invoked. The case is not the ordinary one .of repairs which might be made at trifling expense, but, instead, an, express covenant to reconstruct and enlarge the capacity of the mill by building over or substituting a new motive power, involving the skill and knowledge of experts in hydraulics and mill building, in respect to which the defendant, it is shown, had no special experience or skill. Failure on the part of the lessor plaintiff to perform- its covenant in this respect could not have the effect to impose upon the lessee the risk of success or failure in putting in or setting a new wheel, a risk which might involve the lessee in uncertainty of result and damage to the mill or power, and consequent risk and loss. The burden is one which the lessor had expressly taken upon itself, and which it was in every respect proper it should bear. Therefore the defendant was not bound to put in a new wheel, the expense of which it seehis was about $800, or to reset' or alter the one put in, or its surroundings, the doing of which the evidence tends to show would cost not less than $200. For a failure on the part of the plaintiff in these respects the defendant is entitled to recover the consequent damages. The case is clearly distinguishable from those cited and reliéd on by the plaintiff’s counsel. Myers v. Burns, 35 N. Y. 269, 272; Cook v. Soule, 56 N. Y. 420, 423; Hexter v. Knox, 63 N. Y. 561. The defendant had a right to continue in possession and pay the rent and hold the plaintiff responsible for the damages suffered in consequence of its failure to perform its covenant, if he did nothing to acquiesce in the work of putting in the wheel as a satisfaction of the covenant; and mere payment of rent would not be such acquiescence, as the covenant to payment on the one hand, and putin the required wheel on the other, were independent covenants. Young v. Burhans, 80 Wis. 438; Pryor v. Poster, 130 N. Y. 178; Dennison v. Grove, 52 N. J. Law, 144; Cook v. Soule, 56 N. Y. 420; Hexter v. Knox, 63 N. Y. 561; Lunn v. Gage, 37 Ill. 19. The case is analogous to that of Hinckley v. Beckwith, 13 Wis. 31, in which, as in this, the cost of the work required of the lessor was not trifling or inconsiderable. In that case it is stated by Colts, J., that “ the evidence shows that the injury to the engine was serious, and it is questionable whether it could have been easily .repaired. Certainly it would have taken some time to repair it, and there were only two months of the lease unexpired; ” and the decision in that case is not in conflict with the rule relied on by the defendant. 3 Suth. Dam. § 873, and cases cited in note. We are therefore of the opinion that the defendant was under no obligation to put in the wheel, or to attempt to reset it or alter its surroundings, but might, without so doing, recover his full damages by reason of the plaintiff’s failure to perform its covenant. The case is clearly distinguishable from Poposkey v. Munkwitz, 68 Wis. 331, which occurred in the-city of Milwaukee, where the lessee had been evicted, and it was reasonable to suppose he might readily rent another store wherein to carry on his business, and that in good faith he should have attempted to do so. Failure on the part of the plaintiff to keep its covenant did not amount to an eviction, and, if it did, it would be unreasonable to suppose that the lessee could get another mill in which to carry on his business, without changing his residence.

3. Inasmuch as the payment of rent by the defendant was not per se evidence of acquiescence in or acceptance of' the wheel as a compliance by the plaintiff with its covenant, the foregoing considerations show that continued use of the mill would not be available as such, for the defendant might, notwithstanding, sue upon the covenant and claim damages for its nonperformance. In view of the evidence and what the defendant told Jameson, the plaintiff’s vice president, that the wheel ran well, but he thought there was something deficient about it, that there was not enough wheel pit under it, and that it did not seem to run under a full head as it ought to; and of the testimony of Jameson and others on that subject,— we cannot think that the plaintiff was prejudiced by the instructions of the circuit court on the subject of acquiescence or satisfaction with the wheel.

4. The rule of damages applied to the case by the circuit court was the proper one, namely, the difference between the rental value of the premises with-the specified wheel, and their rental value without it. 2 Suth. Dam. § 872; Cook v. Soule, 56 N. Y. 420; and cases hereinbefore cited. No case was made for the allowance of prospective profits as damages, which at best are conjectural and uncertain, and an allowance of'which is liable to operate unjustly and oppressively. Wright v. Mulvaney, 78 Wis. 97; Bierbach v. Goodyear R. Co. 54 Wis. 208; Anderson v. Sloane, 72 Wis. 566. It does not appear that the defendant had a like business already built up which might justly serve as a basis for 'such allowance, and the court very properly withdrew from the consideration of the jur}’r all evidence on the subject of profits as damages, and directed the assessment of damages on the basis of difference in rental value of the mill, as already stated. Poposkey v. Munkwitz, 68 Wis. 322. This rule, it is evident, the jury followed, and there is reason to think that it was more favorable to the plaintiff than the other. There was, we think, sufficient evidence before the jnry to enable them to apply this rule.

It follows that the judgment of the circuit court is correct, and must be affirmed.

By the Gourt.— The judgment of the circuit court is affirmed.