Mossler Motor Co. v. Jos. Schwartz Co.

BRUNOT, J. Defendant leased certain property to the plaintiff, including an entrance and exit for automobiles. Plaintiff used the common entrance for the purpose of washing automobiles. He evidently abused this privilege, and the abutting property owner, for the protection of his tenant’s rights, built a concrete wall on the property line, which prevented the use of the alley by the-plaintiff. Defendant then gave plaintiff an entrance and exit through his store to the street. Plaintiff continued to wash his cars in this passageway, and the excess water so used flooded defendant’s store arid Caused damage to his goods. He threatened to close this alleyway and plaintiff secured an injunction -prbhibiting him from doing so. Defendant is bound by the terms of the lease to provide his tenant with an entrance and exit for cars, but plaintiff is also under a legal obligation to so conduct his business as not to damage his lessor. The attempted closing of the passageway was error, and plaintiff has a legal right to have it reopened. As a result of this suit and the injunction which .wa's sued out, plaintiff contends that it is entitled to a reduction of rent, and the district court inaintained the injunction and reduced the rent of the premises $100 p5r month. We. concur in the *469 conclusion of our learned brother of tbe district court that defendant should be enjoined from closing the alleyway, which is the only entrance and .exit for automobiles to and from plaintiff’s place of business, but we disagree with Mm in his arbitrary reduction of tbe rent due for tbe use of said premises. If plaintiff has suffered damages Ms recourse is by a suit against his lessor therefor. To hold that any specific amount of damage has been suffered by the plaintiff in this case, when there is not a suggestion of proof upon which to base such an award, is, in our opinion, illegal and unwarranted. Eor these reasons the judgment appealed from is reversed and avoided in so far as it reduces the monthly payments of rent' from $350 per month to $250, and it is now ordered that all rights plaintiff may Have in a suit to recover damages are reserved to it, and that otherwise and in all other respects the judgment appealed from is affirmed, at appellee’s cost.