Fernwood Masonic Hall Ass'n v. Jones

Mr. Justice Trunkey

delivered the opinion of the court, April 16th 1883.

The lessee covenanted to pay rent, $1,500 per annum, and also “the gas bills at the rate of $3 per 1,000 feet during her occupancy of the premises.” The lessor covenanted that upon the faithful compliance with all the conditions and requirements on the part of the lessee, a deduction would be made of $75 from each quarter’s rent. It was uncontroverted that the lessee paid the first three quarters’ rent, and received the said deduction ; that she paid $125 to apply on rent for the three quarters ending on August 1st 1879 ; and that she failed toperform the covenants so as to entitle her to any deduction from the last three quarters. The court instructed the jury that the amount of rent due was $700, independent of any question about gas.

That the lessee agreed to pay for the gas she used, at a certain rate, is as plain as that, she agreed to pay $1,500 per annum. Roth stipulations are in immediate connection, and the covenant to pay for the gas, is as much a part of the rent as would be a covenant to pay the taxes upon the premises during the term. A faithful performance of all the numerous requirements would have entitled her to a reduction of $75 from every quarter. Her obligation to pay for the gas is as explicit as to pay for anything else, and could not be discharged with broken covenants. A breach of the conditions of the clause providing for a deduction, left the lessee answerable, as if said clause were omitted, for by her own default it became inoperative.

We are of opinion that it was error to rule that the sum. due for gas was not part of the rent, and could not be included in the amount distrained for by the landlord. This ruling is the basis of nearly all the instructions which are assigned for error, and so far as it enters into the matter of said assignments, they must be sustained. To remark all parts of the charge and answers to points which are infused with said ruling is unnecessary, for it is apparent that the tenor of the instructions would have been very different had the learned judge set out with the proposition, that the landlord could lawfully distrain for the amount of rent, including the bills for gas, due and unpaid.

The defendant’s ninth point was rightly refused, for the landlord asserted no title to the goods, under the assignment in the lease, but distrained them for rent as the goods- of the tenant and after the distress, while holding them thereunder he was bound to act in all respects as if the tenant were the owner.

Testimony respecting the seizure and sale of the goods of other persons, in which the plaintiff had no interest, was irrelevant. Possibly it was harmless, yet it may have tended to swell the damages. For what purpose it was offered does not appear, and, as the ease now appears, the eleventh assignment must be sustained.

The only remaining question raised by the assignments that calls for notice relates to damages. What is now made the chief cause of complaint would not exist had it not been taken that the distress was for more rent than was due, and also excessive. But it is not certain that the same points will not arise upon another trial, and it is necessary to note so much of the instruction respecting damages as is deemed erroneous. With respect to the sale of the plaintiff’s goods to satisfy the excessive rent claimed, the court repeatedly charged that they were to be valued at what they were worth to her, and further said to the jury : “ In considering what they were worth to the plaintiff, you should allow her what it would cost her to replace them, with full compensation for the time she might be deprived of their use, the inconvenience she has suffered from their loss, and the annoyance she has been subjected to. And as the amercement of the landlord is to be 'grievous, yon need not measure with any very great accuracy the damages thus suffered.” This gave full latitude to find exemplary damages, not only for the grievous amercement of the landlord, but to satisfy the tenant for inconvenience and annoyance. There was no limit, but the discretion of the jury. They must have understood that the defendant’s seventh point and the answer did not apply to this part of the case. That point was, “ Where a right of action exists, and the landlord proceeds according to law, if a mistake has been made in the amount claimed, the jury are confined to the actual damage sustained.” Answer — “ This point is affirmed, but of course you will allow on no account exemplary damages. The damages are to be full and compensatory only.” .Unless the excess claimed was wanton,' or willful, the true rule is embodied in that point and the answer. Where no circumstances of aggravation are shown, the damages are the fair value of the goods, with the cost of replacing them, and other actual injury, to which interest may be added. The measure is the value of the goods at the time when and place where they were distrained, not merely what they were worth for removal, but what it would have cost to procure goods of like quality, and put them in the same place, including compensation for the necessary time, and for actual loss directly and clearly proved in business. This is full compensation to the owner, and sufficient amercement upon a landlord who, in the effort to collect his rent, by mistake, distrains for more than is due.

In this ease there was no evidence of a wrongful distress wantonly or willfully made, even if it were conceded that the gas bill was improperly added as part of the rent. Nor was there any proof of actual loss in business. The place was a summer boarding-house, and the date of distress September 19th; the summer had just ended, and the tenant had no money to pay the rent; her lease would expire on the 1st of May then next, and, after the distress, she wanted to take out $200 worth of furniture, and the landlord could have the rest; the goods were appraised at $1,351.95, sold for $815.80, and the overplus, after satisfying rent and costs, returned to her; yet she recovered $1,010.18. In any view, the rent actually due and unpaid at the time of the distress, including the overplus returned, should have been, and probably was, deducted in fixing the damages. When it is remembered -that the latitude for exemplary damages was expressly limited to “ the goods unnecessarily sold in order to make the $105 of excessive rent,” and how little proof there was of actual damage in other branches of the case, the verdict seems to indicate a very liberal compensation for inconvenience and annoyance suffered by the plaintiff.

Judgment reversed, and venire facias de novo awarded.