Brewington v. Loughran

• Decision Date: 24 May 1922
• Docket Number: 543.
• Citation: 112 S.E. 257,183 N.C. 558
• Parties: BREWINGTON v. LOUGHRAN.
• Court: North Carolina Supreme Court

112 S.E. 257

183 N.C. 558

BREWINGTON v. LOUGHRAN.

No. 543.

Supreme Court of North Carolina

May 24, 1922

Appeal from Superior Court, Buncombe County; Harding, Judge.

Action by W. L. Brewington against Frank Loughran. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

In an action for damage for failure of lessor to furnish hot and cold water under a lease of a barber shop, an instruction regarding the destruction of lessee's business, was erroneous, where there was no evidence that lessee was deprived of the contemplated use of the premises by lessor's alleged breach.

Civil action to recover damages for an alleged breach of covenant in a rental contract.

On July 1, 1919, plaintiff leased from the defendant, for a period of one year, a certain storeroom, known as the Swannanoa-Berkley Barber Shop, located on Biltmore avenue in the city of Asheville, N C. The rent was to be paid in monthly installments of $40 each. Plaintiff alleges that in addition to the premises and fixtures, defendant agreed to furnish "hot and cold water" sufficient for the successful carrying on of his business. This latter covenant is denied by the defendant; and, upon issues joined and counterclaim set up by defendant, the jury returned the following verdict:

"(1) Did the plaintiff and defendant enter into the contract, as alleged in the complaint? A. Yes.

(2) Did the defendant breach said contract? A. Yes.

(3) What damages, if any, is the plaintiff entitled to recover of the defendant? A. One hundred and fifty ($150.00) dollars.

(4) Did the plaintiff breach said contract, as alleged in the answer? A. No.

(5) What amount, if any, is the defendant entitled to recover of the plaintiff? A. Nothing."

Judgment on the verdict in favor of plaintiff, from which the defendant appealed.

Bourne Parker & Jones, of Asheville (Theo. F. Davidson, of Asheville, of counsel), for appellant.

STACY J.

The plaintiff leased from the defendant, for a period of one year a certain storeroom, in the city of Asheville, N. C., to be used as a barber shop. In the written lease the demised premises are described as the "Swannanoa-Berkley Barber Shop, including the fixtures, hot and cold water." Plaintiff contends that this description constituted a covenant on the part of the defendant to furnish him hot water suitable for his business. Defendant denies this contention, and, moreover, insists that at the time the lease was executed he called the plaintiff to his office, and, in the presence of defendant's son explained that he could only agree to furnish plaintiff such hot water as came from the hotel boiler, and that he would not execute the lease except upon that understanding, but further says that there was a jack or urn in the basement of the barber shop, which plaintiff could use to increase the temperature of the water if necessary, and that plaintiff agreed to accept the lease upon these terms.

The present action is for damages for breach of what is claimed to be a covenant to furnish hot water. Defendant counterclaimed for loss of rent; the lease being for a year and plaintiff having vacated the premises after the lapse of two months. The jury answered all the issues in favor of the plaintiff, and from the judgment rendered thereon the defendant has appealed.

The assignments of error, upon which the defendant chiefly relies, are those relating to the admission of evidence tending to show loss of prospective profits and the measure of damages. Defendant contends that his honor permitted the jury to consider supposed future losses and to award speculative damages in violation of the rule stated in Sprout v. Ward, 181 N.C. 372, 107 S.E. 214; Coles v. Lumber Co., 150 N.C. 183, 63 S.E. 736; Machine Co. v. Tob. Co., 141 N.C. 289, 53 S.E. 885 and other cases to like import. Upon this phase of the case the court charged the jury as follows:

"Now, gentlemen of the jury, you can take into consideration the condition of his business at the time he quit, the value of it, and the contract, and if the evidence has satisfied you by its greater weight that the failure of the defendant to furnish hot water brought about the breach of the contract, then you would have to consider the reasonable compensation to the plaintiff for the breach of the contract, the destruction of his business, and you will write as your answer to that issue what is a reasonable compensation."

It will be observed that the issues do not establish "the destruction of his business," as a result of defendant's breach of the contract, for which the plaintiff has been permitted to recover under his honor's charge. It is true a verdict may be given significance, and correctly interpreted by reference to the pleadings, the evidence, admissions of the parties, and the charge of the court (Kannan v. Assad, 182 N.C. 77, 108 S.E. 383), but there is no sufficient finding here that the plaintiff was prevented from having the contemplated use and enjoyment of the premises by reason of the defendant's failure to furnish hot and cold water (Filkin v. Steele, 124 Iowa, 742, 100 N.W. 851; Bass v. Rollins, 63 Minn. 226, 65 N.W. 348).

In answer to the second issue (note wording of issue), the jury has said that the defendant breached his contract; but this, we apprehend, and no more, in the absence of such a right reserved in the lease, would not justify the plaintiff in abandoning the premises and suing for damages, without first putting the lessor in default by affording him a reasonable opportunity, after notice, to comply with the terms of his agreement. Green v. Redding, 92 Cal. 548, 28 P. 599. The case is unlike McMahan v. Miller, 82 N.C. 318, where the tenant was driven from the demised premises by the landlord, or by his refusal to comply with his contract under such circumstances as made it impossible or impracticable for the tenant to remain.

In Lewis v. Chisholm, 68 Ga. 40, it was held that where a landlord covenants to keep the demised premises in repair and fails to do so to the extent merely of diminishing the value of the use of the premises, and not to rendering them untenantable, would not work a forfeiture of the rent, as upon a constructive eviction; for, in the language of the syllabus of the reported case:

"The remedy of the tenant is, after reasonable opportunity to the landlord, and failure by him to repair, to make the repairs himself and look to the landlord for reimbursement, or to occupy the premises without repair, and hold the landlord responsible for damages by action, or by recoupment to an action for the rent."

True, it has been held in a number of cases that, on the breach of the landlord's covenant to furnish necessary accessories, supplies, and equipment, as stipulated in the lease, the tenant may abandon the premises and sue for damages, if, by reason of such breach and continued neglect, they became unfit for his purposes; and this, without further liability for rent on his part. Bissell v. Lloyd, 100 Ill. 214; Sheary v. Adams, 18 Hun, 181; Prescott v. Otterstatter, 85 Pa. 534; 3 Sutherland on Damages (3d Ed.) p. 2611. But we shall not now undertake to formulate any general statement as to what degree of dereliction or default on the part of the landlord, in the absence of any pertinent and controlling stipulation in the lease, will absolve the tenant from his obligation to pay the rent, subsequently accruing under his contract, and thus warrant him in forsaking the premises and suing for damages; for this, we perceive, is a question which must be determined by the facts and circumstances of each particular case. Ordinarily, however, it may be said that a contract is considered to remain in force until it is rescinded by mutual consent, or until the opposite party does some act, inconsistent with the duty imposed upon him by the contract, which amounts to an abandonment of it on his part. Dula v. Cowles, 52 N.C. 293, 75 Am. Dec. 463; Hutchins v. Hodges, 98 N.C. 405, 4 S.E. 46.

In Westerman v. Fiber Co., 162 N.C. 297, 78 S.E. 222, Hoke, J., observed:

"It is not every breach of contract that will operate as a discharge and justify an entire refusal to perform further"

--and, speaking generally to the subject, quoted with approval the following from Anson's Law of Contract, p. 356:

"But though every breach of the contractual obligation confers a right of action upon the injured party, it is not every breach that relieves him from doing what he has undertaken to do. The contract may be broken wholly or in part, and if in part, the breach may not be sufficiently important to operate as a discharge, or, if it be so, the injured party may choose not to regard it as a breach, but may continue to carry out the contract, reserving to himself the right to bring action for such damages as he may have sustained."

See, also, Willis v. Branch, 94 N.C. 142.

In the instant case, plaintiff was permitted to answer, over objection, a number of questions in regard to what he thought he could have made from his barber shop, during the continuance of the term, and what probable losses he sustained in his business by reason of his failure to obtain a sufficient quantity of hot water. We think this evidence should have been excluded. Fleming v. Beck, 48 Pa. 309.

While anticipated profits may be recovered in those cases...