40 Barb. 175 | N.Y. Sup. Ct. | 1862
The referee has found as a matter of fact, that notwithstanding the extra work required by the defendant, the whole job should have been finished by the 11th of January, 1861, within the spirit and meaning of the contract, -and that it was not completed until the 15th of April, 1861.
Assuming that these findings of fact are warranted by the evidence, and also that the value of the use of the building, if it had been, or might have been rented, was $191.50 for those three months and four days, still, I am of the opinion, as the case stands upon the evidence, that sufficient facts are not found by the referee to justify the conclusion of law that
Perhaps, in the absence af all evidence on the subject one way or the other, the presumption would be that the building might have been rented, though I incline to the opinion that it was for the defendant claiming for a loss of rents and profits, to show affirmatively, that he had sustained' such loss, by reason of the plaintiff’s default.
But if such would be the presumption, in the absence of all evidence, it seems to me that it is most effectually rebutted by the evidence which appears in the case. The trial before the referee was on the 26th day of November, 1861, and it appears by the testimony of the defendant that up to that time the building had not been rented, but remained vacant, with the exception of the part up stairs, which appears to have been rented, and occupied, some time before the 15th of April. It further appears from the defendant’s
Under such circumstances, before the recoupment could be properly allowed, it should appear by the evidence, and be found as a fact by the referee, that the loss of the rents and profits was caused by the plaintiff’s non-performance of his contract. As there is no evidence of that character, it is quite apparent that the finding of the referee "that the value of the use of the store in said building from the 11th January,1861, to the 15th. of April, 1861, is $191.50,” is founded solely upon the evidence of what the value of the use would be annually, if used. But as it appeared that the building had then been completed over seven months, and that the defendant had not during all that time succeeded in renting it, I do not see upon what principle he was allowed for this quarter and four days’ rent, at the rate of $800 per year, without tracing the loss to the plaintiff.
Damages are awarded in law as a compensation for an actual loss, occasioned by some fault of the party against whom they are awarded. But before they can be allowed, the party claiming must show in some way" that they have been thus occasioned, either by direct proof of the fact, or by proving a state of facts from which the law will raise the presumption.
If it had been shown that the defendant had the store built for his own use, and that he was kept out of its use by the plaintiff s failure to perform on his part, the law would presume that he was damnified, and would give him, by way of compensation, what such use was worth, for the time he was deprived of it, as buildings of that • description are usually rented to others. And so if he had shown that he was deprived of the privilege of renting, by the plaintiff’s neglect or
In the absence of any finding upon either of these facts, there is no proper foundation for the legal conclusion adopted, that the defendant was entitled to the recoupment.
The judgment must therefore be reversed and a new trial granted, with costs to abide the event.
Johnson, Welles and James C. Smith,, Justices.]