Bros v. Gottwald, 22264.
| Decision Date | 17 June 1921 |
| Docket Number | No. 22264.,22264. |
| Citation | 149 Minn. 268,183 N.W. 356 |
| Parties | FORCE BROS. v. GOTTWALD. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, St. Louis County; A. B. Childress, Judge.
Action by Force Bros. against Frank Gottwald. Judgment for plaintiffs, and defendant appeals. Affirmed.
Ordinarily the measure of damages for a breach by the lessor of a covenant to make improvements is the difference between the rental value of the premises in their actual condition and in the condition in which the lessor agreed to put them.
But where the lessor rents the premises for a business which cannot be carried on in cold weather without artificial heat, and agrees to furnish and install the apparatus necessary to provide such heat, and the business after being established and operated during the warm months is interrupted by his failure to install such apparatus, he is liable to the lessee for loss of profits if such loss was a direct consequence of his breach of the contract, and the amount thereof is not contingent or speculative, but is shown with reasonable certainty.
The amount of such loss resulting from the interruption of an established business may be shown by showing the amount of profits for a reasonable period immediately preceding such interruption if the other conditions were substantially the same.
The correctness of plaintiff's record of receipts and expenditures having been established by the one who made the entries, it was properly received in evidence as a memorandum in connection with his testimony.
The instrument, executed by the parties, evidenced a present contract of leasing, and not an agreement to make a lease in the future. H. H. Phelps, of Duluth, for appellant.
Thos. J. Doyle, of Duluth, for respondent.
Plaintiffs are engaged in the business of repainting and refinishing automobiles.
Defendant is the owner of a brick building consisting of two stories and basement known as number 210 Central avenue in West Duluth. For some years the ground floor was occupied as a clothing store; the second floor is fitted up as a public hall and is also rented at stated times to various lodges as a place for holding their meetings. On February 21, 1919, plaintiffs and defendant entered into the following agreement:
‘Five-year lease at $165.00, entire building, first privilege renewal at price to be agreed upon:
‘Accepted: Frank Gottwald, by E. G. Kreidler, His Agent.’
Plaintiffs took possession of the ground floor and basement of the building on March 1, 1919, and paid rent at the rate of $50 per month until June 1, 1919, on which date they took possession of the entire building, including the addition, and thereafter paid rent at the rate of $165 per month until they vacated the premises in the spring of 1920. In December, 1919, and while still in possession of the premises, they brought this suit for damages for defendant's failure to make certain improvements, alterations and repairs which he had agreed to make. In their complaint they set forth four causes of action. In the first they asserted a claim for loss of profits; in the second a claim for the difference between the rental value of the premises without the improvements and the rental which they had agreed to pay; in the third a claim for the expense of installing certain water pipes. The fourth cause of action was abandoned at the trial, but the three above mentioned were submitted to the jury. In answer to specific questions submitted to them, the jury found that plaintiffs were entitled to recover the sum of $854 on the first cause of action, the sum of $70 on the second cause of action, and the sum of $20 on the third cause of action. They returned a general verdict for the aggregate amount of these sums. Thereafter defendant made an alternative motion for judgment notwithstanding the verdict or for a new trial. On examining the record the court concluded that there was no evidence to sustain the verdict on either the second or third causes of action or to sustain a verdict of more than $711.62 on the first cause of action, and made an order granting a new trial unless plaintiffs consented to reduce the general verdict to the sum of $711.62. Plaintiffs consented to the reduction and judgment was entered on the verdict as so reduced. Defendant appealed from the judgment.
The trial court having eliminated the other three causes of action and the plaintiffs having acquiesced therein, the question remaining is whether the plaintiffs established a right to recover for loss of profits.
The written memorandum shows on its face that it does not cover the entire contract. While the parties disagree as to some of the terms of the contract not set forth in the writing, there is practically no dispute concerning the facts on which the claim for loss of profits is based. It was understood by both parties that plaintiffs were renting the building for the purpose of using the ground floor as a shop in which to repaint and refinish automobiles. To fit it for this use defendant agreed to make various improvements, alterations and repairs. To carry out these undertakings he constructed an addition to the rear of the building 40x50 feet and made various other changes not involved on this appeal. These were completed during the spring of 1919.
The building was heated by steam. To clear the floor so that automobiles could be moved about conveniently, defendant had agreed to remove two radiators from the middle of the building and install them against the wall. He had also agreed to furnish and install additional radiators or steam coils sufficient to heat the building and the addition. The plaintiffs were to do their own heating, but defendant was to furnish the heating plant installed ready for use. He disconnected and removed the two radiators early in the spring, but did nothing toward replacing them or installing the additional apparatus until the middle of October, and did not have the heating plant ready for use until the 1st day of November.
The evidence shows that the work of painting and finishing an automobile can only be done in a place where the temperature is at least as high as 73 degrees Fahrenheit; that it is impossible to do a good job of painting and finishing in a cold room. Plaintiffs repainted and refinished automobiles during the summer, but the weather became so cold in September and October that they were unable to do such work without artificial heat and were obliged to quit until the heating plant was ready for use. The claim in controversy is for the loss of profits or earnings during these two months caused by defendant's failure to install the heating apparatus as agreed.
It is well settled that under ordinary circumstances the measure of damages for a breach by the lessor of a covenant to make improvements and repairs in the difference between the rental value of the premises in their actual condition and their rental value in the condition in which the lessor agreed to put them. Long v. Gieriet, 57 Minn. 278, 59 N. W. 194;Barron v. Liedloff, 95 Minn. 474, 104 N. W. 289;Warren v. Hodges, 137 Minn. 389, 163 N. W. 739; 18 Am. & Eng. Enc. 233; 16 Ruling Case Law, 792. Defendant invokes this rule and insists that plaintiffs cannot recover for loss of profits, but only for diminished rental value, and that they failed to...
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