Watriss v. First National Bank

Gray, C. J. As a general rule, the measure of damages for the breach of a lessee’s covenant to keep in repair, and to surrender the demised premises at the end of the term in as good order and condition as they are in at the beginning of it, is the sum it would cost to repair the premises and put them in the condition they ought to be in. In the time of Lord Holt, this was the rule even in an action brought before the expiration of the lease. Shortridge v. Lamplugh, 2 Ld. Raym. 798, 803; S. C. 7 Mod. 71, 77. Vivian v. Champion, 2 Ld. Raym. 1125; S. C. 1 Salk. 141. In Vivian v. Champion, that great judge said: “ In these actions there ought to be very good damages; and it has always been practised so before me, and everybody else that I ever knew. We always inquire, in these cases, what it will cost to put the premises in repair, and give so much damages, and the plaintiff ought in justice to apply the damages to the repair of the premises.” According to later cases, when the lessor sues on the covenant to repair, pending the lease, and so before he is entitled to possession of the premises, the damages may perhaps be limited to the diminution in the market value of his estate. See Nixon v. Denham, 1 Irish Law, 100; S.C. l Jebb & Symes, 416; Smith v. Peat, 9 Exch. 161; Macnamara v. Vincent, 2 Irish Ch. 481; Davies v. Underwood, 2 H. & N. 570; Bell v. Hayden, 9 Irish [346] C. L. 301; Mills v. East London Union, L. R. 8 C. P.79; Maynon Damages (3d ed.) 229. But when the action is brought after the end of the term, the measure of damages is still held to be such a sum as will put the premises in the condition in which the tenant is bound to leave them. Elliott v. Watkins, 1 Jones Exch. 308. Burdett v. Withers, 7 Ad. & El. 136; S. C. 2 Nev. & Per. 122. Penley v. Watts, 7 M. & W. 601, 610, 611. Payne v. Haine, 16 M. & W. 541. Yates v. Dunster, 11 Exch. 15. Rawlings v. Morgan, 18 C. B. (N. S.) 776. Mayne on Damages, 232, 233. In Yates v. Punster, Baron Parke quoted the statement of Lord Holt, above cited, and referred to Newcastle v. Broxtowe, 4 B. & Ad. 273; S. C. 1 Nev. & Man. 598; in which, in an action against the hundred for the demolition of a house by rioters, it was held that the owner of the house was entitled to recover that sum of money which would replace the house, as nearly as practicable, in the situation and state it was at the time of the outrage committed, although the injury to its rental value was only one fourth as much. Without undertaking to lay down an inflexible rule, applicable to all cases, we are of opinion that in the present case the defendant is not aggrieved by the ruling at the trial.- The action" is brought after the termination of the lease, and the surrender of the premises by the defendant to the plaintiff. The wrong complained of is not mere dilapidation or suffering to go to decay; but it is the voluntary removal of fixtures that had been annexed to the freehold, and were part of the plaintiff’s real estate, at the beginning of the lease sued on. Watriss v. Cambridge National Bank, 124 Mass. 571. In such a case, the measure of damages must be the sum which will put the premises in the condition in which the defendant was bound to leave them, allowing for reasonable use and wear. When that sum is less than the diminution in the market value of the" premises by the removal of the structures, neither party suffers by this rule; because the plaintiff, by applying that sum to the restoration of the premises, obtains a full indemnity. When, as in this case, that sum exceeds the amount of the injury to the market value of the premises, the plaintiff is entitled to it; otherwise, a tenant who, without the consent of his landlord, had altered the nature or the arrangement of the buildings demised, [347] might escape all liability for more than nominal damages for the breach of his covenant, by proving that his alterations had increased the market value of the estate. Flliott v. Watkins, above cited. Maddock v. Mallet, 12 Irish C. L. 173. This case is not distinguishable in principle from Lawton v. Fitchburg Railroad, 8 Cush. 230, which was an action for breach of an agreement to build fences between the lands of the plaintiff and of the defendant; the defendant contended that the plaintiff could only recover damages for the injury to his land by its being unfenced; but it was held that he was entitled to the sum which it would fairly cost to put up the fences according to the agreement. Whether the defendant is legally entitled to an allowance for the increase of value by substituting new material for old need not be considered, because in this case such an allowance has been made with the plaintiff’s assent. Judgment for the plaintiff for the larger sum.