James v. Kibler's Adm'r , 94 Va. 165 ( 1896 )

Harrison, J.,

delivered the opinion of the court.

The plaintiffs leased certain real estate to the defendant’s intestate and others for a specified period, the lessees agreeing to pay therefor an annual rental of three thousand dollars, payable in monthly instalments of two hundred and fifty dollars. The lessees not having taken possession of the demised premises, the plaintiffs gave them notice that the premises were ready for their use andfrsoccupation. This notice being disregarded, they were notified in writing that unless they complied with the terms of the contract of lease on or before a certain day named in the notice, the lease would be put up at public auction, after due advertisement, and the lessees held chargeable to the plaintiffs for all costs, damages, and deficit, if any, between the contract and what could be obtained at the sale. Wo attention being paid to this notice, the lease was duly sold at public auction, and one of the plaintiffs being the highest bidder, became the purchaser at $1,450 per annum, or $120.83^- per month, leaving a deficit of $1,550.00 per cirinum, or $129.16-J per month. Thereupon the plaintiffs brought this action to recover as damages the sum that would have been due as rents at the date of the auction sale, and the value at that date of each future monthly deficit of $129.16-|, and costs and expenses of sale, as the iust measure of compensation due from the lessees for their total breach of the contract.

There is filed with the declaration a bill of particulars showing the present value of each monthly deficit to the end of the lease, ascertained according to well established rules, and the other items of damage claimed, the whole aggregating $6,739.33-£ as of the date to which the calculation is made.

The question presented is whether the plaintiffs are entitled to recover damages m solido for the breach of the contract, or whether they can only recov er the amount of deficit due under the contract at the date of the judgment.

The plaintiffs asked for an instruction covering the former view which was refused, and in lieu thereof one was given on behalf of the defendant embodying the latter view.

The court below seems to have regarded the plaintiff’s action as one to recover instalments of rent falling due under an existing and continuing contract, rather than as a suit to recover damages for the complete breach of a contract.

There was an entire abandonment of the contract by the defendant, a refusal on his part to carry it out. He stood by, after due notice in writing, and acquiesced in the lease contract being sold at public auction, fully informed that he would be held responsible for whatever difference there might be between the price obtained at the auction sale and that which he contracted to pay. In such a case the plaintiff is not entitled to recover for rent of the premises, but he has compensation for the injury sustained in consequence of the breach of the contract, and his measure of damage is the difference between that which he was to receive under the violated contract, and that which he does receive from the purchaser of the lease at .either a private or public sale fairly made.

Where the wrongful act of the defendant is of such a nature as to constitute an entire breach of the contract, compensation therefor may be recovered at once for the whole loss, though the consequence be a continuing one, if the future damage resulting therefrom can be ascertained with certainty. Sutherland on Dam., sec. 121; Sedgwick on Dam., sec. 90; Remlee v. Hall, 31 Vermont 582; James v. Allen Co., 44 Ohio St. 226.

In the case at bar the future damage accruing to the plaintiff each succeeding month, is easily and certainly determined by simply subtracting one ascertained sum from another, and reducing each of the several sums thus obtained to its present value .by well settled rules prepared for the purpose.

The instruction asked for by the plaintiff was based upon the evidence in the case, and correctly directs the jury how to estimate the damages, and is otherwise in accordance with the plaintiffs’ rights, and should have been given.

The defendant contends that the lease contract shows no maintainable cause of action, that it is a present demise for ten years, and not being under seal is void under the statute of conveyances. (Sec. 2413, Code.)

The demise is for a specified period of five years, followed by this provision, which is relied on by the defendant to support his position: “If at the expiration of the said term of five years the said parties of the second part shall desire to retain the said lot and storehouse, with the appurtenances thereunto belonging for five years next after the expiration of the said term of five years, the said parties of the second part shall have the power and right so to retain same on the terms, stipulations, and covenants herein espressed touching the term of five years next ensuing the date hereof, provided six months notice in writing is given by said lessees to said lessors of such intention and desire. ’ ’

This clause is in the form usually employed in lease contracts, where the lessee desires to secure the privilege of a second term. It is not a present demise of the premises for ten years, but an option to renew the lease, a mere covenant or undertaking to let the lessee have an additional term of live years upon the condition that he signify his election by six months notice in writing. The very statement of the contract shows .that there was a lease for only five years, with a right to the lesssee to hav e another lease at the end of that time if he desired it, upon condition that he give the notice. A mere covenant to renew a term at the option of the lessee is not an actual renting for a longer period than the term specified. Gear on Landlord and Tenant, secs. 10-27; Hunter v. Silvus, 15 Ill. 174; Sutherland v. Goodnow, 108 Ill. 528.

It is further contended on behalf of the defendant that the lessors in making sale of the lease were acting as agents of the lessees, and for this reason could not bid or become purchasers at the sale, and that, inasmuch as one of them became the purchaser, it was equivalent to a re-entry on the leased premises by both, and that this act of re-entry disentitled them to recover anything more than the rent due at the time of sale.

The fallacy of this position is found in the mistaken notion, manifest throughout the case, that the relation of landlord and tenant existed between the plaintiffs and defendant. Ho such relation existed. The mere signing of an agreement does not establish that relation, although it may create a right of action for damages for a breach of the contract, or for a specific performance of it. The defendant had never taken any possession under his contract, but had broken and abandoned it long before the sale. The plaintiffs had never been out of possession, and hence there could be no re-entry.

As to the position now taken, for the first time so far as appears from the record, that the plaintiffs were acting as agents of the defendants in making the auction sale and therefore could not buy, it must be observed that it was the duty of the plaintiffs to minimize the amount due them as damages, so as to relieve the defendant as far as possible from the consequences of his own default. It is not pretended that the price obtained was not a fair and full one„ The sale was made with the knowledge and acquiescence of the defendant, and it may be fairly presumed that the price ptained was satisfactory, as no objection appears to have been made. The principle relied on that a man cannot be both buyer and seller has no application in a case like this. The amount secured at the sale is prima facie the true value, but it is not conclusive if for any reason it can be made to appear that the sale was not fairly made. . The sale is a means adopted for protecting the defendant as far as possible from loss, and for the purpose of ascertaining the amount of damage due the plaintiffs. Its results were only used on the trial as evidence on behalf of the plaintiffs tending to establish the damages they were entitled to recover. If it was not a correct estimate of the credit the defendant was entitled to, it should have been overcome by evidence on his behalf show ing that he was entitled to a larger credit, and it would have been for the jury to determine that issue between the parties. Ho evidence was introduced by the defendant on the subject, from which it must be presumed that he was unable to establish any greater estimate of credit than that fixed by the evidence of the plaintiffs.

The defendant has waived at bar his contention that there was a mis-joinder of parties plaintiff, and it is therefore unnecessary to consider that assignment of error.

For the foregoing reasons the judgment of the lower court must be reversed, the verdict of the jury set aside, and the cause remanded for a new trial to be had therein in accordance with the views expressed in this opinion.

Reversed.