Townsend v. Nickerson Wharf Co.

Ames, J. It is true, as a general rule, that if possession of demised. premises be withheld by the lessor or by his authority, so that the lessee cannot occupy them at all, he may maintain an action against the lessor for the breach of the agreement; and in that 503 case the measure of damages would be the difference between the actual value of the lease and the rent which the tenant would have been bound to pay by its terms. Trull v. Granger, 4 Seld. 115. But in this case the tenant was not excluded from the whole of the demised premises. He accepted the lease. He occupied all of the premises that he could get possession of, and although, according to his complaint, the contract was but partially fulfilled by the defendant, he has paid the rent for the whole term, exactly as he would have done if he had occupied all that the lease purports to give him. His claim for damages, therefore, is for the wrong done in refusing to allow him to take possession of a portion of the demised premises, and depriving him of the beneficial enjoyment of that portion. The contract between the parties is inartificially drawn. On the plaintiff’s construction of it, and assuming, in the absence of any exception by the defendant, that it was the defendant’s business, and not the plaintiff’s, to expel'the occupant of the storehouse, and that by the failure to do so the contract was violated by the defendant, and that the action can therefore be maintained, the damages which the plaintiff would be entitled to recover would depend upon the circumstances under which the contract was made. If the lessor knew that the tenant was engaged in the manufacture of whiting, intended to put the premises to that special use, intended also to erect machinery and incur expense in preparation for the business, and. needed or expected to use ál the leased property for that special purpose, so that the exclusion of him from an important part of the premises would prevent the successful prosecution of the business, and render the whole or part of his outlay wholly useless, the rule as to the measure of damages, given by the presiding judge, would be wholly inadequate. The fact that the property was understood to be let for a special purpose of such a kind may be proved by oral evidence, and need not be stated in the lease. But if, on the other hand, nothing appears except that the tenant hired the premises, and accepted the lease, and no special use to which they were to.be put was made known before the hiring to the lessor, the rule of damages laid down by the court would be correct. So far as there is any uncertainty upon this point, it was the duty of the plaintiff, as the excepting party, to fur 504 nish the explanation. As the bill of exceptions stands, we cannot say that there was a hiring of the premises for a special purpose, or that there was evidence tending to show that such was the fact, and therefore it is not apparent that there was any error in the ruling of the court. For this reason, we must order that the Exceptions he overruled.