174 Pa. 588 | Pa. | 1896
Opinion by
in No. 355,
Anna P. Sharpless, the defendant in this case, leased a small farm in Delaware county to John Wood, the plaintiff in the case, for one year from the first of April, 1892. The rent reserved was three hundred dollars, payable quarterly. The plaintiff occupied the farm under this lease two years, and during that time paid only two quarters’ rent. The defendant dis-trained the plaintiff’s goods for three quarters’ rent in July, 1893, for one quarters’ rent in October following, and for another quarters’ rent in January, 1894. The plaintiff promptly followed each distress with a writ of replevin for the goods dis-trained and the result was that there were three actions pending between the parties, in each of which the single question presented was whether there was any rent due from the plaintiff to the defendant. The cases were tried together in the court below and the jury .were instructed to find whether there was any rent due to the defendant, and if so, to state the amount of it. The jury found “ for the defendant, rent in arrear $150,” and this finding appears to have been recorded in each case. Judgment was entered on the verdict for $100 in the first suit, and for $25.00 in each of the other suits. From these judgments appeals were taken by the defendant. Her contention is that the court below erred in construing the provision in the lease relating to the fences, and in the instruction in regard to the measure of damages in case it was found that she failed to furnish material for the repair of the same.
The provision in the lease to which reference has been made is as follows : “ The said John Wood also agrees .... to keep the fences in proper repair, the material for which to be furnished by the lessor.” The learned court below construed this provision as containing a covenant by the defendant on the performance of which the plaintiff’s covenant to keep the fences in proper repair depended, and instructed the jury in effect that if there was a breach of the defendant’s covenant to furnish material the plaintiff might deduct from -the rent the difference between the rental value of the property with the covenants-performed and the rental value of it with the covenants disregarded. It will be noticed that the provision in question did not require the plaintiff to build new fences on the farm, nor
In construing the fence clause regard must be had to the circumstances surrounding the transaction between the parties, and their purpose in inserting it in their contract. They wanted and were mutually interested in having the fences kept in proper repair. The. plaintiff’s covenant to keep them so was express, and if it was not qualified or made conditional by the words “ the material for which to be furnished by the lessor ” it was independent and absolute. It was not in terms dependent upon the defendant’s covenant to furnish material. If the plaintiff had furnished the material and the defendant had paid for it, her covenant would have been satisfied, and if she had refused to furnish the material he might have furnished it, and deducted the cost from her claim for rent. What then was the proper measure of damages for the breach of the defendant’s implied covenant to furnish the material ? Clearly not that which was given to the jury in this case. It was not enlarged by the plaintiff’s inaction in the premises, for the law would not reward him for that. He could not have more than he would have been entitled to if he had performed both covenants, and that would have been the cost of supplying the material it was the duty of the defendant to provide.
A railroad company agreed to build and maintain a fence on each side of its right of way through a farm. It built the fences but neglected to maintain them. The owner of the farm brought an action against the company to recover damages for the breach of its agreement to maintain the fences. It was held that the value of the farm with the performance of the contract, as compared with its value without such performance, was not a proper measure of the damages suffered by the plaintiff, but that the cost of maintaining the fences furnished the true measure: Erie & Pittsburg Railroad Co. v. Johnson, 101 Pa. 555.
In Loker v. Damon, 17 Pickering, 284, the plaintiff claimed damages for the destruction of ten rods of his fence. The fence was destroyed in November, 1832, and he built another in its place in May, 1833. He claimed that in consequence of the destruction of the fence his own and his neighbors’ cattle entered his close and destroyed his grass. It was held in an opinion by Chief Justice Shaw that the measure of damages was the cost of replacing the fence. The view taken of the case was that while the act complained of was tortious, it was the duty of the plaintiff on discovering it to replace the fence-within a reasonable time, and that for injuries to his property in consequence of his neglect to do so the original wrongdoer-was not hable.
In this case the plaintiff was in possession of the demised premises for two years from April, 1892, and although he claims, that at the commencement of his term the fences were in such a state of dilapidation that they were insufficient to restrain his. cattle, it does not appear that during that time he made any vigorous effort to put them in condition to do so. He was at liberty and it was his duty under the lease to use in the repair-of the fences such material on the demised premises as was suitable and could be properly employed for that purpose. If there was not enough of such material on the premises to put. and keep the fences in proper repair he should have requested the defendant to supply the deficiency, and on her neglect or refusal to do so he might have furnished it at her expense. For-the labor and money expended in doing what it was her duty to do he would have been entitled to a deduction from the rent, and as this accrued and was payable quarterly he had in his hands the means for prompt reimbursement. Under the circumstances of the case he cannot have, directly or indirectly, any abatement from the rent, based on the nonperformance of' his own covenant.
In our view of the case the only material error committed by the learned court below lies in the instruction to the juiy in.
Judgment reversed and venire facias de novo awarded.
wood v. sharpless, no. 356, Jan. T., 1895.
Opinion by
April 6, 1896 :
For the reasons stated in the opinion just filed in No. 355, January term, 1895, supra, this judgment is reversed and a venire facias de novo is awarded.
wood v. sharpless, no. 357, Jan. T., 1895.
Opinion by
April 6, 1896:
For the reasons stated in No. 355, January term, 1895, just decided, supra, the judgment in this case is reversed and a ver ñire facias de novo is awarded.
