Chapman v. Kirby

Mr. Justice Walker delivered the opinion of the Court: It appears, from the evidence in this case, that Pomeroy Brothers, on the 1st day of May, 1864, were the owners of a planing mill and premises in the city of Chicago, and by a deed duly executed, leased to appellee a portion of the premises and a quantity of steam power, which was specified, from the 1st day of May, 1864, until the 1st day of January, 1869, at a specified rent. Lessors reserved the right to stop for reasonable repairs when required, but such repairs to be made with the least possible delay; lessors covenanted for the use and enjoyment of the premises and power during the term, and appellee covenanted, on his part, as follows: “ It is expressly understood and agreed, by and between the parties aforesaid, that if the rent above reserved; or any part thereof, shall be behind or unpaid on the day of payment whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants or agreements herein contained, to be kept by the said party of the second part, his executors, administrators and assigns, it shall and may be ■ lawful for the said parties of the first part, their heirs, executors, administrators, agent, attorney or assigns, at their election, to declare said term ended, and into the said premises, or any part thereof, either with or without process of law, to re-enter, and the said party of the second part, or any other person or persons occupying in or upon the same, to expel, remove and put out, using such force as may be necessary in so doing, and the said premises again to re-possess and enjoy, as in their first and former estate. * * * * And if at any time said term shall be ended at such election of said parties of the first part, their heirs, executors, administrators and assigns, as aforesaid, or in any other way, the said party of the second part, his executors, administrators and assigns, do hereby covenant and agree to surrender and deliver up said above described premises and property, peaceably, to said parties of • the first part, their heirs, executors, administrators and assigns, immediately upon the determination of said term as aforesaid, and if he shall remain in possession of the same ten days after notice of such default, or after the termination of this lease, in any of the ways above named, he shall be deemed guilty of a forcible detainer of said premises, under the statute, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of law, as above stated.” It appears that Pomeroy Brothers assigned their lease to A. C. Hesing, and he to appellant, Chapman. Appellee paid rent to Pomeroy Brothers until they assigned their lease, and afterwards to Chapman. But after the 1st of April, 1867, no rent was paid, but it seems to have been tendered after the notice of the 7th of May was served on appellee notifying him that appellant elected- to terminate the lease after the expiration of ten days, for the previous failure to pay rent on the 1st of May. On the 1st of June, 1867, Chapman severed the connecting shaft, just outside of the portion of the premises held by appellee, which connected with the engine and sun-plied appellee with power, and thus stopped his machinery. And for this act, on the part of Chapman, appellee brought an action on the case, to recover for the damages he claims to have sustained, and on a second trial in the court below the jury found a verdict for five thousand dollars in favor of appellee. A motion for a new trial was entered, which the court overruled and rendered a judgment on the verdict, and the case is brought to this court on appeal, and a reversal is asked upon several grounds. It is claimed that appellants had the right to enter, as soon as appellee failed to perform his covenants, and that when they gave notice in May that they would terminate the lease because the rent was not paid, they did all that was required of them before they broke the connection and stopped the power. The right of forfeiture being a harsh remedy, and liable to produce great- hardship, if not oppression, has never been favored by the law, and hence, before a lease can be declared forfeited, the law requires a strict compliance with several important pre-requisites. Among them is a demand of the rent on the day it falls due, for the precise amount, at a convenient hour before sunset, on the land, if no place is named, or at the place specified in the lease for its payment; a demand must be made, in fact, at the place, although no person be present, and there must be a failure or refusal at the time to make payment. Where these things were all done, the common law authorized the landlord to declare a forfeiture if the lease provided for such forfeiture. In this case none of those things were done, and hence, the case does not fall within the common law rule, and no forfeiture occurred from the giving of the notice of the 7th of Hay. If it be urged that there was a valid declaration of a forfeiture, so as to terminate the lease and authorize a re-entry by appellants under the statute, it will be found that the act of 1865 has not been complied with by appellants. The notice was served on appellee on the 7th day of Hay, 1867, and appellants instructed their clerk, who served the notice, not to receive the rent if appellee offered to pay it, and he offered to pay it, and the money was refused, within the ten days after the service of the notice. It was held, in the case of Chadwick v. Parker, 44 Ill. 326, in giving a construction to this statute, that ten days’ notice must be given, and that the tenant may pay the rent in arrear within that time and prevent a forfeiture. We see that appellee did all he could to pay the rent then due, but it was refused, and the offer and refusal were tantamount to payment, and saved the lease from a forfeiture. We do not deem it necessary to determine whether the law of 1865 can apply to and govern leases entered into and executed before the passage of that law; nor, in the view we have taken of the case, do we propose to discuss the question of whether any person but the assignee of a reversion, or the holder of such reversion, can legally declare a forfeiture. In this view of the case, all questions arising on the instructions in reference to the forfeiture and the non-payment of rent or its tender, were properly refused. When appellee received the lease, he acquired by it a right to the use of the power communicated from appellants’ engine, through the shaft from appellee’s machinery, as fully as he did to occupy the buildings and premises. It formed a part of the lease, and a failure to pay the rent did not any more authorize appellants to withhold the power than it did to enter upon and dispossess appellee of the buildings and premises demised. It has never been held that the mere non-payment of rent would authorize the landlord to enter upon and forcibly expel the tenant, or to remove the tenements or their appurtenances, or any part of them. Hence, the failure to pay the rent did not authorize appellants to resume the power communicated by their engine, as it was appurtenant to the leased premises. A lessor of a mill operated by water would have no right to shut off or divert the water which afforded the power, because his tenant failed to pay the rent, any more than to remove the building itself. The seventh of appellants’ instructions was, therefore, properly refused. We now come to the consideration of the question of the measure of the damages. It is objected, that on this point improper evidence was received, and improper instructions given; and in permitting the jury to find damages beyond the time when the suit was brought. The court below admitted evidence to show the extent of appellee’s business and profits during the six months previous to the withholding of the power from appellee’s machinery, to enable the jury to estimate the amount of damages he sustained. The court, on this question of damages, also instructed the jury, that if they found for appellee, in estimating his damages they could consider the nature and extent of his business at the time the power was withdrawn, the amount of business he had done during the six months previous, together with loss on stock, machinery and buildings, or other losses shown by evidence, which were necessarily sustained by appellee by reason of withholding the power and interfering with his beneficial enjoyment of his leasehold estate. This was an action on the case, and not on contract. In all actions of tort, the measure of damages is not less than the amount of damages sustained, and in case, all of the consequential damages sustained, connected with or flowing from the act complained of by the plaintiff. But the damages must be the necessary and natural consequence of the act. They must be real, and not merely speculative or probable. And 'if, by withdrawing the steam power on the 1st of June, and a failure to restore it until the 1st of ¡November following, his leasehold estate became reduced in value, and his stock and machinery were depreciated, and his business was broken up, and his customers were diverted to other places of business, these were all proper elements for the consideration of the jury in ascertaining the amount of damages sustained by appellee. And if all these things did occur, and were the direct result of appellants’ wrongful act, they should make good the loss. It can not be held that, after the power was withheld, appellee should remain inactive, hold his machinery, unfinished stock and fixtures, until the end of his term, undisposed of, and his capital tied up and yielding him nothing. ¡No rule of law or principle of justice could require such a course. When the power was withheld, appellee had a right to suppose that it would be permanent, and to dispose of his lease, stock, machinery and fixtures on the best terms he could obtain. And there can be no doubt that appellants should be held liable for any loss that might be sustained by such a sale. Appellants having committed the wrong, must be held liar ble for all losses that flow from it. And if the loss on these various articles was the necessary and proximate result of the act,—and of that the jury must judge from the evidence,— they must be held liable. It can not be said that, when the lease has been destroyed or rendered valueless, the buildings, machinery, and stock in trade have been depreciated, and a lucrative business destroyed by the wrongful act of another, the sufferer shall only receive nominal damages, or the mere damages equal only to the value of the lease over and above the rent. The person thus wronged is entitled to recover for all of the injury he has sustained. As to the estimate of losses sustained by the breaking up of his established business, there would seem to he no well founded objection. We all know that in many, if not all, professions and callings, years of effort, skill and toil are necessary to establish a profitable business, and that when established it is worth more than capital. Can it then be said, that a party deprived of it has no remedy, and can recover nothing for its loss, when produced by another ? It has long been well recognized law, that when deprived of such business by slander, compensation for its loss may be recovered in this form of action. And why not for its loss by this more direct means % And of what does this loss consist, but the profits that would have been made had the- act not been performed by appellants ? And to measure such damages, the jury must have some basis for an estimate, and what more reasonable than to take the profits for a reasonable period next preceding the time when the injury was inflicted, leaving the other party to show, that by depression in trade, or other causes, they would have been less ? Kor can we expect, that in actions of this character, the precise extent of the damages can be shown by demonstration. But by this means they can be ascertained with a reasonable degree of certainty, if or do the views here expressed conflict with the case of Green v. Williams, 45 Ill. 206, as in that case the lessee had not entered upon the term; had not built up or established a business, and bad not suffered such a loss. There was not in that case any basis upon which to determine whether there ever would be any profits, or upon which to estimate them. The case of Cilley v. Hawkins, 48 Ill. 308, proceeds upon the same principle. The evidence as well as the instruction in reference to the profits and losses, were proper. That instruction being proper, the reverse was improper and was correctly refused. jSTor is there any force in the objection, that appellee was not confined to the value of his lease from the time the power was withheld until it was connected with the machinery, some five months afterwards. Appellee had sold out, his business was destroyed, and he was not bound to re-establish his business, when he had no assurance that it would be continued during the remainder of his term. Appellants had cut off the power under such circumstances as warranted him in believing that it was intended to deprive him of the use of the power, and he was not bound to suppose appellants would be more disposed to regard his rights in the future than they had been in the past. If appellants had repented and were then disposed to retract, they must not complain if appellee was unwilling to trust their future conduct, as by their own disregard of his rights in the past, they could not expect him to confide in them in the future. The instructions fairly presented the case to the jury, and the evidence sustains the verdict. The judgment of the court below must be affirmed. Judgment affirmed.