Huiest v. Marx

Rombauer, P. J. The defendant, being the owner of the premises herein described, executed and delivered to the plaintiffs the following instrument: “$10.00 St. Louis, February 10, 1892. “In consideration of $10 per year in advance, I do hereby lease north and south walls of building No. 1802 and 1804 N. B’way Street to the Huiest & Stout Co. for advertising purposes for five years. (Signed) “Fred Marx.” The plaintiffs, who make it a business to paint advertisements upon the outside walls of houses for hire, took possession, under the instrument, of the north and south walls of building numbers 1802 and 1804 [421] on North Broadway in the city of St. Louis (being the building referred to), and painted thereon three advertisements at an aggregate cost of $83.50. The evidence shows that they were to receive for these advertisements from the advertisers between .$90 and $100 per annum, and that it would cost between $40 and $50 per annum to keep the advertisements in good con'dition, but it fails to show that plaintiffs had any contracts with the advertisers for any definite period of time. After the expiration of thirteen months from the inception of the lease, some'person to the plaintiffs unknown effaced the advertisements thus painted on the walls. The plaintiffs remonstrated with-the defendant, who thereupon told them that he had sold the premises. Upon this evidence adduced by the plaintiffs the court made the following declaration of law: “The court’ declares the law to be that, if the plaintiffs are entitled to recover anything, the court sitting as a jury should assess their damages at such sum as the court may find from the evidence to be the difference between the consideration, which under the contract plaintiffs would have been liable to pay for the unexpired term of the license granted to them by defendant, and the reasonable net value of said license to the plaintiffs for said unexpired term.” The court thereupon found for plaintiffs in the sum of $155.70. The defendant appeals and assigns for error that the evidence furnishes no basis for any recovery; that the court excluded proper evidence which he offered; that the declaration of law made by the court was erroneous; and that the damages awarded are excessive. We conclude that the defendant’s complaints are just. The evidence adduced furnished no basis for any recovery, because it wholly fails to show that the plaintiffs were evicted either by the defendant himself, or [422] by any party claiming under Mm, or having a paramount title to the premises. Whether the instrument in question is a lease or an executed license, in neither event does it make the defendant liable for the act of a. mere trespasser upon plaintiff’s rights. 1 Taylor on Landlord and Tenant, sec. 305. The defendant offered evidence tending to show the rental value of the premises. This evidence the court, upon plaintiffs’ objection, excluded. This ruling was error. Even under the more liberal modern doctrine announced by Blackbubn, J., in Lock v. Furze, L. R. 1 C. P. 441, the true measure of the evicted tenant’s damages can not exceed the amount which he lost by the landlord’s breach of his contract. One of the elements of such loss is the difference between the rent reserved and the rental value of the premises, and the defendant was entitled to show that the rent reserved, part of which had been paid in advance, was-all that the premises were worth. The declaration of law made by the court is misleading and indefinite. It is not the value of the term to plaintiffs, but its market value, that must be. considered. If the plaintiffs had incurred expenses in the painting of the advertisements, they were, as is inferablefrom the evidence, reimbursed by the advertisers who-had paid for the advertisements. In no event can the plaintiff’s recover more than they lost. It does not-appear from the evidence that they lost the advertisement they had; on the contrary it affirmatively appears-that they rented other walls for the purpose of continuing these advertisements, and that they did continue them. It nowhere appears that they paid for the-rental of such other walls more than the rent reserved for the walls in question, nor does it appear that they lost the custom of their advertising patrons. Hence,. [423] in any view of the ease, the damages awarded by the court are excessive. The judgment is reversed and the cause remanded. All concur.