Shipley v. Pittsburg, Carnegie & Western Railroad

Opinion by

Mr. Justice Fell,

The plaintiffs were engaged in the wholesale drug business and were the lessees of a building which was taken by the defendant in the construction of its road. The lease was for one year from April 1, 1901, with the right in the lessees to extend it for two years from April 1, 1902. They had exercised this right by giving the notice provided for by the lease, and sixteen months of their term was unexpired at the date of the approval of the bonds given to secure them and the owner. The questions raised as to the measure of damages are practically the same as those considered in the preceding case: The James McMillen Printing Company v. The Pittsburg, Carnegie & Western Railroad Company, ante, p. 504. The testimony as to the expense of taking down and replacing of fixtures in the new location, to which some of the assignments of error relate, was eliminated by the charge, and the elements of damage submitted to the jury were the value of the unexpired term, the depreciation in value of the fixtures in place, and the reasonable cost of removal. The last two should not have been submitted as separate items, for which a recovery could be had, but as evidence of the value of the right of undisturbed possession to the end of the term which had been taken from the plaintiffs. No objection, however, was made on this ground and no specific instructions on the subject were asked for at the trial.

The main question in the case was whether the appellant could exercise the right reserved by the landlord to require the tenant to vacate the building on ten days’ notice. The lease contained the following clause: “ And the said parties of the second part covenant and agree that they will remove from and give peaceable possession of the premises hereby leased within ten days after he shall have received from the lessor notice to vacate the premises.” Under the facts of this case, the defendant acquired no right under this clause. The bond to secure the owner and the bond to secure the tenants were approved the same day. The only notice proved was a written notice of the time when a bond to secure the tenants would be presented to the court for approval, and an oral statement made by the agent who served it that the plaintiffs would have to look out for a new place. There was an attempt to give to this notice the effect of a notice given under the lease, but there was neither proof nor offer of proof of a notice given under the lease. If such a notice had been given, it would not have reduced the term from sixteen months to ten days. If given before the approval of the owner’s bond, it was given at a time when the defendant had no right in the property; if given after the owner had been secured, since both bonds were approved at the same time, it was given after the appropriation of the tenant’s interest had been completed and the status of the parties fixed. The tenant’s term of sixteen months had been taken, and the obligation to pay for it had been incurred. In relief of its obligation the defendant could not destroy the value of the thing taken.

The judgment is affirmed.