Burruss v. Hines

• Citation: 26 S.E. 875,94 Va. 413
• Parties: BURRUSS. v. HINES.
• Decision Date: 18 March 1897
• Court: Supreme Court of Virginia

26 S.E. 875

94 Va. 413

BURRUSS.

v.HINES.

Supreme Court of Appeals of Virginia.

March 18, 1897.

Damages—Loss or Rent — Exemplary Damages —Attorney's Fees.

1. For delay in construction of a building on plaintiff's lot, caused by defendant's build-ing overhanging the lot and defendant's delaying removal thereof, the net rental value may be recovered; construction having been contracted for and commenced, and the building having been rented in advance, from a certain time, for a definite period, at a specified rent.

2. Code, § 2840, forbidding an action on a contract to lease, not in writing, and not to be performed within a year, does not prevent the giving in evidence of the contract, as evidence of rental value, in an action for damages for delay in the construction of the building, a lease of which was contracted for.

3. Exemplary damages should not be allowed for refusal of defendant to remove his building, overhanging plaintiff's lot, and delaying construction of building on plaintiff's lot, under a mistaken belief that plaintiff was responsible for the projection of the building, and that he was not obliged to remove it, though there was considerable delay after decree commanding him to remedy it; this being partly due to efforts to devise means to do the work without taking down the building.

4. Where exemplary damages are not recoverable for delay in remedying a wall of defendant's building projecting so as to prevent erection of a building on plaintiff's lot, plaintiff cannot recover attorney's fees expended in an injunction suit to compel removal of the wall.

Error to law and chancery court of Norfolk.

Action by William A. Hines against Nathaniel Burruss for damages for delaying construction of building. Judgment for plaintiff.. Defendant brings error. Reversed.

George McIntish and D. T. Brooke, for appellant.

Harmanson, Heath & Heath, for appellee.

RIELY, J. The plaintiff and defendant were owners of adjoining lots in the city of Norfolk. Upon the lot of the defendant was a brick storage warehouse, while that of the plaintiff was unimproved. The plaintiff, desiring to improve his lot, also had, prior to November 29, 1892, entered into a contract for the erection thereon of a double store and office building. It was to be ready for occupation by May 1, 1893, from which date the plaintiff had rented one-half of the building for the sum of $100 per month, and the other store for the sum of $75 per month.

It was ascertained, shortly after commencing to erect the building, that the adjoining wall of the defendant's warehouse careened and overhung the lot of the plaintiff so that the erection of his building could not be further proceeded with. He promptly notified the defendant of this fact, informed him of the proposed erection of his building, and required him to draw in his wall to its proper bounds. This was on November 29, 1892. The defendant refused to comply with the plaintiff's demand. Thereupon the plaintiff applied to the court for a mandatory injunction to compel him to do so. The defendant made the defense that the injury to his wall was the result of the jarring and concussion caused by the act of the plaintiff in "piling" his own lot for the foundation of his proposed building. The court, at the hearing of the cause, decided against the contention of the defendant, awarded the injunction, and the defendant, after some delay, took down his wall.

Subsequently the plaintiff brought suit against the defendant to recover damages for the loss he had sustained from the failure of the defendant to straighten or remove his wall until compelled by the court to do so, and recovered a verdict for $3,200, upon which the court, after overruling the motion for a new trial, entered judgment.

The record shows that the jury, in rendering their verdict, which was afterwards put in proper form, itemized the damage of the plaintiff as follows:

                --------------------------
                |In matter of fee |$ 500 |
                |-----------------|------|
                |Net rental       |1, 700|
                |-----------------|------|
                |Damage           |1, 000|
                |-----------------|------|
                |                 |$3,200|
                --------------------------
                

The demurrer to the declaration and the bills of exception present for decision the following questions:

(1) The right of the plaintiff to recover the value of the use of his land and the building to be erected upon it for the time he was deprived of their use.

(2) Was the case one in which it was proper to award exemplary damages?

(3) Was the plaintiff entitled to recover the amount of the fee incurred to his attorney in the injunction suit?

They will be considered in their order:

1. The general rule in awarding damages Is to give compensation for pecuniary loss; that is, to put the plaintiff in the same position, so far as money can do it, as he would have been if the contract had been performed, or the tort not committed, —Sedg. Meas. Dam. (8th Ed.) § 30, —or, as was suggested by Judge Joynes in Peshine v. Shepperson, 17 Grat. 485, it would be more appropriate to say that "the object of the law is to give amends or reparation."

The plaintiff is entitled to recover all such damages as are the natural and proximate result of the wrongful act complained of. 2 Greenl. Ev. § 256; Sedg. Meas. Dam. § 122; and Peshine v. Shepperson, supra. The rule is well established and uniformly enunciated by the courts, but there is often difficulty in applying it to a particular case. The plaintiff must show, not only that he has sustained damage, but also show with reasonable certainty the extent of it And it must appear that such damage was the natural and proximate result of the injury.

A plaintiff will not ordinarily be allowed to give evidence of, or to recover, profits or expected gains, for it is generally conjectural whether there will be any profits or gains. The prohibition against the recovery of profits or gains, when not excluded as unnatural or remote, is due mainly to the inability to prove with reasonable certainty that the injury prevented the receipt of profits or gains, and their amount. But if it be shown that the loss of profits or gains was the naturaland proximate result of the wrongful act, and their extent is also satisfactorily proved, they may be recovered. Sedg. Meas. Dam. §§ 174, 176, 177, 184; 8 Wait, Act. & Def. 210; Griffin v. Colver, 16 N. Y. 489; Allison v. Chandler, 11 Mich. 542; Boiling v. Lers-ner, 26 Grat. 36; Brigham v. Carlisle, 78 Ala. 249; Abbott v. Gatch, 13 Md. 314; and City of Chicago v. Huenerbein, 85 Ill. 594.

In the case at bar it was shown that the plaintiff had contracted for the erection on his lot of the building referred to, and had begun its erection, when it was ascertained that the work could not be further prosecuted, on account of the obstruction by the defendant's wall. The defendant was notified by the plaintiff of his purpose to erect the building, of its plan and character, of the obstruction to its erection caused by the condition of the adjoining wall of the defendant's warehouse, and required to remedy the defect in his wall, or remove It. He was fully advised as to these material facts. He contended, as has been already stated, that the condition of his wall was the result of the act of the plaintiff, and that he was not responsible for the obstruction. Resort was had to the court to determine the controversy. It was decided against the defendant Owing to the litigation and the delay in removing the obstructing wall, the plaintiff was deprived of the use of his building for about 16 months.

The measure of the damage sustained by the plaintiff—there being no evidence of any other loss—was the value of the use of his lot and building for the time he was deprived thereof; that is, its fair rental value.

A part of the building was leased, in advance of its completion, at the rate of $175 per month. It does not clearly appear from the evidence that the renting was for any definite period, though the argument here proceeded upon the ground that it was for 1 year. At the rate of $175 per month, the rent for 16 months would have amounted to $2,800. It was proved that the taxes would have been at the rate of $200, and the insurance at the rate of $100, per annum. It was further proved that the plaintiff had to borrow the sum of $8,800 to pay the contractors for erecting the building. Deducting from the gross rent the proportion of the taxes, insurance, and interest on the money borrowed for the time the plaintiff was deprived of the use of his building, to wit, 16 months, and there would remain $1,696 as his loss, which is substantially the amount ($1,700) allowed by the jury as his actual damage. This sum was not speculative profits, but was based on an actual lease of the property at a fixed rent. Its loss was specially claimed in the declaration as an item of damage, was proved with the requisite certainty, and was the natural and proximate result of the conduct of the...