Thuemler v. Brown , 1901 Pa. Super. LEXIS 145 ( 1901 )

Opinion by

William W. Porter, J.,

By a written agreement the defendant leased to the plaintiff certain premises for one year with the privilege of renewal for a second year. By the writing it was agreed that the lessee should have the right to purchase the property and buildings for an agreed amount. During the running of the lease a railroad company began proceedings to take a part of the premises under their right of eminent domain. The defendant, the owner of the land, sold to the railroad company the strip which they desired for railroad purposes. For this he received a considerable sum of money. He delivered to the railroad company a deed reciting that the conveyance was made subject to the rights of the lessee. The plaintiff here litigated with the railroad his right to damages for injury to his leasehold. Before the expiration of his lease, he notified the defendant of his intention to exercise the option to purchase. The defendant having parted with a portion of the land was unable to make the conveyance. This action is brought for damages for breach of the agreement to convey. Under the instructions of the court, the plaintiff was permitted to recover compensatory damages.

The defendant claims, under the first two assignments of error, that as the deed was made by the defendant to the railroad company subject to the lease, the plaintiff should be restricted in his recovery to nominal damages. The defendant by the giving of his deed to the railroad company did not avoid the performance of his covenant to convey contained in his agreement with the plaintiff. His conveyance of a part of the land stripped him of the power to convey the whole of the land to the lessee. He was, therefore, liable for the damages resulting to the lessee by reason of the breach. When the lessee gave notice to the lessor of his intention to take the land under the option to buy, the agreement became a contract of sale, binding on both parties: Newell’s Appeal, 100 Pa. 513; Knerr v. Bradley, 105 Pa. 190.

The third assignment is not pressed in the argument. The fourth and fifth assignments are excerpts from the charge. These, taken with the body of the charge, seem to us unobjectionable. The damages recovered were restricted to compensation. If the breach of the defendant’s contract to convey resulted, as the plaintiff contends, in the loss of improvements put upon the property, the loss thus incurred would be an item for the jury to consider in rendering their verdict, as would also the cost of moving his machinery out of the buildings. If the conveyance were prevented by some unforeseen cause, it may be that nominal damages only could be recovered, but where the party to the contract by his own act makes it impossible for him to perform his covenant, the plaintiff is entitled to compensation. The lessor having rescinded the contract or rendered himself unable to perform it, may not complain if the lessee by reason of the breach was permitted to recover for the cost of the improvements and the cost of removing his machinery placed in the building during the running of his option to purchase: Bender v. Bender, 87 Pa. 419; Bitner v. Brough, 11 Pa. 127. These damages are compensatory. They are such as naturally flowed from the breach: Billmeyer v. Wagner, 91 Pa. 92.

The sixth assignment complains that the defendant was not permitted to show that the amount of the rental was fixed in contemplation of the intended improvements to be put upon the property by the tenant. It was excluded on the ground that the agreement was in writing and that the attempt was to alter or supplement its terms. We think this was a proper ruling. The appellant in the seventh assignment complains that the plaintiff was permitted to show that the defendant had in fact taken from the railroad company, at the time of the conveyance of the piece of land to them, a bond to protect the defendant from liability under his covenant with the plaintiff. We think this evidence was admissible for more than one reason. It tended to show that the defendant, in making the conveyance, knew that he was committing a breach of his agreement ; that his breach was not under any claim of right; that he anticipated a claim for damages; that it tended to contradict the defendant’s contention that the land was as valuable to the lessee after the deprivation of a part as before. The terms of the charge and the amount of the verdict clearly indicate that the introduction of the bond as evidence did not result in a recovery of excessive damages at the hands of a jury inflamed by desire to mulct a corporation.

Finding no error committed in the trial, the judgment is affirmed.