Rose v. Wynn , 42 Ark. 257 ( 1883 )

OPINION.

Though appellant was unavoidably prevented from delivering possession of the demised premises, in compliance with the terms of the lease, yet appellee was entitled to a verdict for some damages for breach of the contract on her part.

If loss upon the wood provided by appellee for the purpose of operating the hotel could be treated as actual damages, resulting directly from breach of the contract by appellant, appellee did not state what such loss was.

It seems the family of appellee consisted of himself, wife and mother-in-law.

The difference between the cost of boarding them for four and a half months until appellee built his house, and the expense of living at the hotel, had possession been delivered, was conjectural, and too uncertain to be treated as the measure of damages in such an action.

The books agree that in an action by a lessee against a lessor for damages for refusal or failure to deliver possession of the demised premises x.he general rule for the meas- ° ure of damages is the difference between the rent reserved and the value of the premises for the term.

If the value of the premises for the term is no greater than the rent which tenant has agreed to pay, then the latter is not substantially injured, and can in general recover only nominal damages, though the landlord without just cause refused to give possession. But if the value of the. premises is greater than the rent to be paid, the lessee is entitled to the benefit of his contract, and this will ordinarily consist of the difference between the two amounts. Adair v. Boyle, 20 Iowa, 242; Trull v. Granger, 4 Selden, (New York Court of Appeals), 115; 3 Sutherland on Damages, 150; Green v. Williams, 45 Ill., 206; Dean v. Roesler, 1 Hilton, 422.

Special damages.

It seems, also, from the current of adjudications, that if other damages have resulted as the direct and necessary or natural consequence of the defendant’s breach of the contract, these are also recoverable. For example, if plaintiff in good faith, and relying on the contract, has made preparation to take possession, and these have been rendered useless by the defendant’s refusal to comply with his contract, the authorities hold that there may be a recovery for the loss thus sustained. 3 Sutherland on Damages, 151; Adair v. Boyle, sup.; Green v. Williams, sup.; Driggs v. Dwight, 17 Wend., 71; Newbough v. Walker, 8 Grattan, 16.

Per contra, see Hughes et al. v. Hood et. al., 50 Mo., 350.

In this case appellee did not prove that the rental value of the demised premises was greater than the rent which he contracted to pay.

Nor did he prove any actual special damages within the above rule.

The instructions of the court did not properly advise the jury as to the measure of damages in the action. And the damages assessed were not warranted by the evidence.

Reversed, and remanded for a new trial.