Pratt v. Paine

Colt, J. The clause in the lease, the interpretation of which is in dispute, was plainly intended to provide indemnity to the [446] lessee for loss sustained by him in case the lessors should exercise a reserved right to abridge the term by notice. This intention is not to be lost sight of. The words of the agreement are, that the lessee shall be paid such sum as a compensation for the loss he may, by such abridgment of the term, sustain “ in consequence of expenditures incurred by the lessee in fitting up the premises, and expenses incurred in removing,” as shall be awarded to him in the mode provided. These words as used in this lease, applied to the subject matter and the condition of the premises, cannot fairly be interpreted as including only the actual additions to the real estate in the nature of permanent fixtures. In our opinion they have a broader signification, and include not only the fitting of the building and premises to the uses of the lessee, but the fitting of his furniture to the building. This construction was adopted by the judge at the trial, and is not open to exceptions by either party. But it was urged at the argument by the defendants that the jury were nevertheless misled by the language used by the judge in his ruling upon this point. The judge ruled that “ the term ‘ fitting up the premises ’ meant all the expenses the lessee was at, during the term, in doing anything to the premises to adapt them to his use,” and in fitting furniture to the same, “ that is, the labor and expense of fitting it, and the depreciation in value upon it.” Without doubt the true measure of the plaintiff’s damage is the loss he has sustained by reason of having incurred expenditures, the full benefit of which he has lost by the abridgment of his lease. The lessee is not to receive as damages the entire cost of a fitting up, the benefit of which he has enjoyed for a part of the term. It is the shortening of the period of enjoyment of which he complains. But we are not satisfied, upon this bill of exceptions, that the jury could have been misled by the language used as to the true rule of compensation. The ruling was not objected to at the trial as inaccurate in this respect; it does not appear to be all the instruction given on this part of the case, and, although open to criticism, it could not have conveyed the idea, in connection with the clause in the lease, that the jury were to disregard the rule now stated as the true rule. The judge was evidently pointing out the elements which must enter into the computa [447] tian in arriving at the loss sustained by the plaintiff, rather than stating the principle upon which compensation should be made, and he must have been so understood. The second count is upon an account annexed to recover for commissions and services in negotiating a lease of the premises to another party. There was conflicting. evidence on the question whether the defendants agreed to pay regular brokers’ commissions. The plaintiff relied on the existence of a custom which entitled a broker to charge the lessor on a lease of twenty or over three years, one per cent, on the whole rent stipulated to be paid, while the commissions on sales of real estate were only one per cent, on the price paid. The court ruled, against the defendants’ objection, that this was a reasonable custom. But it is not necessary now to pass upon the question, because the amount of the verdict shows that the jury must have negatived the existence of an agreement to pay commissions, and founded their verdict on the value of the plaintiff’s services. This they were warranted in doing under the pleadings, under the instructions given and not excepted to, and upon the report of the auditor, which was before them as evidence. Exceptions overruled.