Jackson v. Farrell

Opinion by Beaver, J., The affidavit of defense in this case is made by the attorney of the defendant. All the statements therein contained are, of course, based upon information and belief. Technically there should have been an averment of an expectation on the part of the defendant to prove the facts thus stated. The affidavit, however, is in itself so faulty that it is not necessary to rely upon this technicality to affirm the judgment of the court below. Admitting, that the covenant on the part of the plaintiff to move the building occupied by the defendant to the board walk thereafter to be erected was a part of the agreement for the lease of the building, and admitting also the failure of the plaintiff to comply with his agreement, after notice and request by the defendant, two courses were open to the defendant. He could have moved the building, in accordance with the terms of the agreement, and defalked the cost of moving it from the amount of the rent, or he could have surrendered the possession, or offered to surrender it, and have relieved himseLf from the payment of the rent, or he could have retained the [35] possession and deducted from the rent the difference between the rental value of the store room as it would have been, if the stipulations of the agreement as alleged by him had been complied with, and its rental value as occupied by him: Peterson v. Haight, 3 Wharton, 150; Warner v. Caulk, 3 Wharton, 193. The allegation in the affidavit of the amount of damages sustained by the defendant “ by reason of the plaintiff’s neglect to move the store out to the boardwalk ” is vague and ttncertain. This estimate of damages was evidently -based upon supposed loss of trade out of which prospective profits were to be realized. This is not a proper measure of damages in such a case. The rule laid down in Fairman v. Fluck, 5 Watts, 516, based upon Schuylkill Navigation Co. v. Thoburn, 7 Sergeant & Rawle, 411, which is a leading case, is that the measure of damages for the breach of such a covenant as this on the part of the landlord “ ought to be the difference 'between the worth of the premises in the condition in which they remained and that which they would have been in, had the landlord’s covenant been performed; or, in other words, so much less as they would have rented for without the covenant.” The defendant makes no effort to inform the court as to the difference in rental value between the store as it was to be under the covenant alleged by him, and the store as it was during his tenancy. The affidavit of defense was, therefore, insufficient, and the court was clearly justified in making absolute the rule for judgment. Judgment affirmed.