133 N.W. 1030 | N.D. | 1911
Tbe defendant rented to plaintiff a certain hotel in tbe city of Minot., One of tbe clauses in tbe contract reads as follows: “Tbe party of tbe first part (Olson) agrees, during tbe continuance of tbis lease, to furnish tbe beat for tbe proper beating of the-same, from tbe 1st day of October to tbe succeeding 1st day of May during each year, from tbe date hereof.” Tbe action is for damages for violation of tbis condition of tbe lease. Plaintiff alleges that under the lease be entered upon said premises October 1, 1905, and remained there until October 30, 1906, when be was evicted by reason of tbe failure of tbe defendant to furnish beat for said premises. Tbe written lease made by tbe parties was for and during tbe terms of five years from October 1, 1905. Tbe damages claimed were: First, for $100 per month from October 1, 1905, to May 1, 1906, $700 in all; second, $1,-000 per year from October 30, 1906, for tbe remaining four years’ term of tbe lease, total $1,000; third, because be bad bought certain furniture especially fitted for the building, and paid therefor $2,000, and which, when moved from tbe said building, bad no value in excess of $500, and on that cause of action claims $1,000 damages. Defendant entered ai general denial, except that be admitted making tbe lease as alleged by plaintiff, and then set forth a counterclaim for damages: First, for [putting in partitions and injuring tbe floors, $100; second, abandoning, |the place without cause, damage $1,800, being tbe rental of said premises for tbe unexpired term; third, taking away tbe keys of tbe building, $50; fourth, leaving tbe premises in a dirty and filthy condition, $75,— making a total of $5,025. A general denial to tbe counterclaim was-set forth in tbe reply. Tbe cause was tried before tbe court and a jury, and during tbe time of tbe trial plaintiff was permitted to amend bis complaint by adding thereto tbe following: “That said furniture and fixtures were especially adapted to said building and rooms and especially useful therein; that upon plaintiff’s eviction from said building as
In justice to the learned judge who tried this case, it is only fair to suggest that if counsel had made a motion for a new trial, and thus .given the court below a chance to review the entire record, it is safe to say that the expense of an appeal would have been saved. The writer hereof, through long experience as a trial court, well knows the difficulties attendant upon a trial, where, as shown by the record herein, more care should have been given to the preparation of the pleadings
In view of the fact that the selling of heat has become an important industry under modern methods, the rights of parties growing out of contracts to furnish heat take an unusual importance. The plaintiff in this instance had no more control over the source of supply than as though the heat was to come from a central plant, blocks away, and not,, as it did, from the cellar beneath the rented building. We are not dealing with a question of repairs. There is no intimation that there were-neither proper pipes nor a lack of radiation. It was simply a failure-on the part of defendant, who was in sole control of the heating plant, to use fuel and keep present a sufficient amount of steam to warm the-rooms.
An apartment house contract was under discussion in the case of O’Gorman v. Harby, 18 Misc. 228, 41 N. Y. Supp. 521, where a landlord failed to supply a sufficient amount of heat. The court says: “The facts of the case do warrant us, however, in saying that in matters of.repairing and remedying defects, as between the landlord and the lessee of rooms in an apartment house, a reasonable rule prevails. If, after uotice, the landlord proceeds with proper diligence to do what is necessary, he is allowed a reasonable time to remedy the defect. If the tenant waits a reasonable time for him to do the work, and it is; not done, he may remove from the premises if he has been and is deprived of the beneficial use and enjoyment of them. . . . The-tenant attempted to keep warm by the use of lamps and gas logs in his apartment; but it cannot be held that he was bound to do this during-a protracted discontinuance of the steam heat which his lease calls:
Again, the supreme court of New York, in Siebold v. Heyman, 120 N. Y. Supp. 105, says: “There can be no doubt that the failure of a landlord to supply sufficient heat to an apartment used as a dwelling and fitted with apparatus for that purpose, over which the landlord has control, constitutes a constructive eviction if the tenant so elects and moves out. Butler v. Newhouse, 85 N. Y. Supp. 373. It is only by removal that the tenant can make his election.”
Our sister state, South Dakota, in Edmison v. Lowry, 3 S. D. at page 85, 17 L.R.A. 275, 44 Am. St. Rep. 774, 52 N. W. 585, uses the following language: “In a case like the present, the technical rule which requires the element either of absolute expulsion from the property by the landlord, or abandonment by the tenant, to be included in the act of •eviction, does not and ought not to be applied. A party should be held •evicted when the act of the landlord is of such a character as to deprive the tenant, or has the effect of depriving him, of the beneficial use and enjoyment of the whole or any part of the demised property to the extent he is thus deprived.”
In Hoeveler v. Fleming, 91 Pa. 322, the supreme court of Pennsylvania says: “The modern doctrine as to what constitutes an eviction is that actual physical expulsion is not necessary, but any interference with the tenant’s beneficial enjoyment of the demised premises will .-amount to an eviction in law.”
An exhaustive note collating the authorities from different states may be found in the case of Wade v. Herndl, 127 Wis. 544, 5 L.R.A. (N.S.) 855, 107 N. W. 4, as printed in volume 7 Ann. Cas. 594. See 2 Underhill, Land. & T. 1909 ed. 1143, and cases cited.
Based upon our statute and these authorities, which might be multiplied, it clearly appears that the acts of defendant worked a constructive eviction of plaintiff. It would follow, therefore, that defendant broke his contract, and would not be entitled to any damages for the abandonment of the premises. The amount of damages as asked by
Adair v. Bogle, 20 Iowa, 238, is a leading ease upon this subject. Judge Dillon, at page 243, discussing the subject, says: “It is also settled that in such an action against the landlord for damages, the
We find the general rule stated in 3 Sutherland, Damages, 3d ed. 2518, as follows: “On this general proposition the authorities agree. In such cases the difference between the rent to be paid and the actual value of the premises at the time of the breach for the unexpired term is considered the natural and proximate damages.”
Upon, the first cause of action the jury awarded to the plaintiff the sum of $350. The defendant says, by virtue of his motion, as a matter of law, there was no competent proof in, the record which would sustain
Assuming the foregoing to be all competent, it clearly appears from an anaylsis thereof that there is no sufficient evidence to warrant the jury in finding the verdict which they did. It must be remembered that the plaintiff had been in the hotel but a short time. The most definite statement, and that was a conclusion of fact, was that in the summer his net profit was $150, and in the winter he lost $50 a month. There is no evidence in any way showing the basis upon which this finding was made. The jury was not given any information upon which they could draw such a conclusion, and they were left simply to speculate and guess at a possible loss. As was stated by the court in St. John v. New York, 13 How. Pr. at page 532: “It is not denied that loss of custom is the proper ground of recovery. To prove this was the object and direct tendency of the evidence; the plaintiff showed the actual receipts of his hotel for a year or more previous to' the obstruction complained of, the actual daily receipts during the continuance of the obstruction, and again the actual daily receipts for some months after the obstruction was removed. This furnished the means of computation, and of satisfactorily ascertaining the diminution - of receipts. He also showed that the expenses were in the same, or about the same, ratio to the receipts during the whole period.” No such proofs were offered in this case.
As counsel for the appellant properly suggests in his brief: “The most natural way to make such proofs would be by comparing the profits for corresponding periods of time through any prior or succeeding years, and under the condition of proper heating of the building. This could readily be done by showing gross earnings, actual expenses of the business during such period, if the circumstances of the case made such proof possible. There were no expenses of prior or succeeding years in this case, and therefore such proof was impossible; but that does not compel the court to accept improper evidence. Plaintiff’s damages must be such as are susceptible of legal proof; otherwise he is without remedy.”
It is clear from the pleadings, if not from the verdict, that the plaintiff desires damages for the remainder of the term. Assume that the plaintiff ought to be awarded such damages, how shall that be meas
The court erred in submitting that question to the jury. Again referring to the rule laid down by the court in Hayes v. Cooley, 13 N. D. 204, 100 N. W. 250, we do not believe that the testimony in support of this cause of action shows that the damages claimed may be reasonably supposed to have been in the contemplation of both parties, at the time when they made the contract, as the probable result of the breach of it. In so far as the failure to furnish the heat was a cause contributing to the loss on the furniture, it was remote, and not a proximate, consequence thereof. It was held in the case just cited that “if the. contract in question . . . was in fact made under such special and exceptional circumstances that it could reasonably be concluded that the parties in making it contemplated that a loss by storm would follow its
As was stated by the court in Serfling v. Andrews, 106 Wis. 80, 81 N. W. 991: “Damages for the breach of a contract are limited to such as may be reasonably considered to have been in contemplation by the parties at the time of the making of such contract as the probable result of a breach of it. . . . Upon the facts stated in the complaint, the true rule of damages would have been the difference between the actual rental value of the premises for the term and the rent reserved in the lease. ... If plaintiff desired to recover special damages, such as loss of prospective profits, it was his duty to allege the facts and circumstances and knowledge of the situation brought home to the defendant at the time the lease was made.”
Judge Dillon, as quoted above, in Adair v. Bogle, affirms this same rule.
Under the rule, therefore, as laid down by our own, as well as other, courts, in order to have maintained any recovery of damages whatsoever growing out of the second cause of action, it would have been necessary for the plaintiff to have alleged and proved that the question of the furniture and its possible depreciation in value in case of a breaking of the lease was considered by both parties and contemplated as a factor in helping to make up the amount of damages, should any in their view occur. There is danger likewise of entering into the realm of speculation at this point; something not permitted by the statute. If it may be claimed that the statute is sufficiently broad to coyer cases of this kind, what would be the result had the plaintiff put into these rooms mahogany furniture, marble-topped tables, the finest and most expensive kind of rugs, and then, being compelled to leave the premises, could ■ find no sale for such property? Could it be urged that he could have the difference between the cost of the furniture, less the value of the reasonable wear and tear, and less the amount for which he could find sale for it ? The necessities of the rule as laid down by the authorities grew out of the very nature of the case. If the parties had desired such a rule of damages to be applied, they should have so indicated in their written contract. Failure to do this leaves them to the rule laid down in the statute. That rule has been fully adjudicated by the courts.
The decision of the lower court is reversed, the judgment vacated and set aside, and a new trial is ordered.