Fowler v. Payne

Chalmers, J., delivered the opinion of the court. This case has been heretofore before us, and will bo found reported in 49 Miss., 33, whore all the facts, and the conclusions of law arising thereon, are set out with great fullness. It was then remanded for an account to be stated, in accordance with the directions then given. The account has now been stated, and this appeal is from the order confirming the samo. A preliminary objection urged is that the account was [213] stated without proper notice. The parties were non-residents, and the notice was given, under the orders of the court, by publication for one month in a newspaper, a copy of which was by the clerk transmitted by mail to the proper post-office of defendants. This we think was sufficient. Why the notice was not served upon the attorneys of record does not appear. It may be that they had withdrawn from the case. By the former decree rendered in the cause, which was affirmed here, the commissioner was ordered, in stating the account, to ascertain, 1st, what amount of rent was due complainant up to the giving of notice by him to defendants to rebuild ; and, 2d, what amount of damages complainant ‘had sustained by reason of defendants’ refusal to rebuild. The commissioner, under the first clause of these directions, reported that there was rent due to the amount of $298.34, which, however, should be diminished by one-half amount of taxes paid by complainant on the common property, say $32, deducting which left due the sum of $266.25. As to this much •of the report there is no complaint. Under the second item of the instructions the commissioner reported that complainant had sustained damages, by defendants’ failure to rebuild, to the amount of $1,505. This result was reached in the following manner : Complainant had leased the building for five years, at a monthly rental of $50 per month. Ho had sub-let it for twelve months, at a monthly rental of $85, thus clearing a profit of $35 per month. The house was destroyed by fire during this under term of twelve months. The commissioner was of opinion, and so reported, that if it had been promptly rebuilt, as was contemplated by the agreement between the parties, it could have been continuously sub-let for $85 per month, and that therefore the damage sustained by complainant, by reason of defendants’ refusal to rebuild, was the sum of $35 multiplied by the number of months which had ■elapsed between such refusal and the taking of the account. This view was approved by the court. The rent due by [214] complainant, $266.25, was subtracted from the amount of damage thus ascertained to have been sustained. A decree for1 the difference of $1,238.85 was rendered in complainant’s favor, and defendants’ interest' in the lot ordered to be sold therefor. A sale took place under this decree. Defendants’ interest in the lot brought $71, which was wholly absorbed by the" court costs, and therefore a personal decree over against him was entered for the amount which had been found due. The somewhat surprising result of the whole litigation is this : Defendants had leased the property to complainant, for five years, at $50 per month, under a stipulation to keep it in repair. The tenant sub-let it at an advance of $35 per month. .The-house was destroyed by fire. Defendants declined to rebuild. The court decided that a covenant to repair is a covenant to rebuild, and that, as against a claim for rent, complainant could recdup the damage sustained by defendants’ refusal to rebuild. Thereupon complainant obtained a decree over against defendant for $1,200. It may well be doubted if such a result as this could be properly reached in any state of pleadings, or in any form of action. It is certain that it could not in the present case. The bill was filed to enjoin an action at law Avhich the lessor had brought to recover rents accruing after the burning. It sought, among other things, to set up, by way of recoupment, the damages sustained by the lessee by the lessors’ failure to-rebuild. It was treated as a plea of recoupment in all the pleadings, and expressly so declared to be by this court in 49 Miss., supra. Recoupment is purely defensive, and never Carries with it any affirmative relief. It may operate to abate a part or' the' whole of the plaintiff’s demand, but can never justify the rendition of a judgment over against him. Waterman on Set-off and Recoupments, §§ 424, 425 ; Stow v.Yarwood, 14 Ill., 424; Britton v. Turner, 6 N. H., 481; Batteman v. Pierce, 3 Hill (N. Y.), 171. So much of the commissioner’s report, therefore, as' allowed [215] any damages to complainant beyond the rent found due by Mm was manifestly improper. Counsel por appellee insists that it cannot be corrected by this court, for two reasons : • 1. Because, right or wrong, the principle allowing it was affirmed by the former decision of this court in this case, and it is, therefore, the law of the case, without regard'to its merits. 2. Because no exceptions were filed to the report of the commissioners in the court below. Neither of these objections is sound. The former opinion only settled that complainant was entitled to recoup his damages. . In so holding it was of course implied that the damages should be limited by the rule applicable to this species of defense — that the damages should not exceed the lessor’s demand which was being litigated in the action at law. Nor is it necessary to file exceptions to a report which is erroneous in point of law, or which violates the directions upon which it was ordered to be stated. Such report may be attacked on the motion for confirmation, or by appeal from decree of confirmation. Was the report of the commissioner wrong in allowing the profit of $35 per month beyond the period for which the building had been actually rented for such profit? He reported that, if it had been rebuilt, it could have been readily continued to be let out at the monthly rental of $85, up to the time of the taking of the account. We think it was admissible for the commissioner to inquire whether, in case the house had been rebuilt, it could have been sub-let by the .tenant, and at what figure. We cannot say that his estimate as to such prospective rent was too high, because there were no exceptions filed thereto; and this seems, in connection with what is said above, to illustrate when exceptions to a report are necessary, and when not. As to all matters depending on proof, and confided to the judgment of the commissioner, they are necessary; as' to violations of the' principles of law, or of [216] the directions under which the report is ordered to be stated, they are not. We are of opinion, therefore, that the report of the commissioner was correct in so far as it allowed complainant damages up to an amount sufficient to abate all demands for rent against him, and erroneous in so far as it was in excess of this. There was a prayer in complainant’s bill for a partition of the land, which was not acted on because the land was sold under the decree herein above alluded to. It will, therefore, be necessary to remand the cause for further proceedings. The decree confirming the report of the commissioner, as well as the decree of sale, and the final decree confirming the sale and awarding personal judgment against defendants, are reversed, and this cause is remanded for further proceedings in accordance with this opinion.