Prochaska v. Fox

Grant, J. (after stating the facts). 1. The theory of the plaintiff is that he was evicted from the premises before the expiration of his term; that the defendant was responsible for such eviction, and was guilty of breach of contract; and that plaintiff is entitled to recover on the common counts in assumpsit for money equitably due him. His counsel claim the right to recover the money paid for the lease. Clearly he could not recover the whole amount, for he had the use of the premises nearly half the time granted by the lease. If the defendant had broken his covenant or agreement for quiet enjoyment, or if plaintiff had been evicted by a paramount title, the declaration should have been special, and the measure of damages would have been the value of the use of the land less the rent. 5 Enc. PI. & Prac. pp. 371-375; 2 Taylor, Landl. & Ten. § 661; Cornelissens v. Driscoll, 89 Mich. 34 (50 N. W. 749); Long v. Sinclair, 38 Mich. 90; Coulter v. Norton, 100 Mich. 389 (59 N. W. 163, 43 Am. St. Rep. 458). 2. After the plaintiff had rested, and the court was about to direct a verdict, plaintiff’s counsel asked leave to amend the declaration. No amendment was tendered, and what the form of the amendment would be is not shown. Whether the proposed amendment would have been admissible we need not determine. The court did not err in refusing an amendment at that stage of the trial. Judgment affirmed. The other Justices concurred.