Fisher v. Goebel

• Decision Date: 31 March 1867
• Citation: 40 Mo. 475
• Parties: ADOLPH FISHER, Defendant in Error, v. GERT GOEBEL, Plaintiff in Error.
• Court: Missouri Supreme Court

40 Mo. 475

ADOLPH FISHER, Defendant in Error,

v.GERT GOEBEL, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1867.

Error to St. Louis Court of Common Pleas.

Instruction given for plaintiff:

1. If the jury find from the evidence that the defendant neglected and failed to build a suitable and sufficient wall and fence along the south side of the domicil premises as provided in the lease read in evidence, and if the jury further find from the evidence that by reason of the failure of the defendant to build such wall and fence the plaintiff sustained damage and injury, then the plaintiff is entitled to recover in this action.

The court, on its own motion, gave instruction No. 6 to the ry:

6. If the jury find for the plaintiff, the measure of damages is the difference between what would have been the value of the rent or use of the leased premises in case the defendant had fully kept and performed the covenants in the lease, and what was the value of the rent or use of the same premises in the condition they actually were by reason of the failure of defendant to keep or perform any of said covenants; but the jury cannot allow the plaintiff anything in respect to the value of the use of improvements put upon the premises beyond $800 worth of such improvements.

Instructions given for defendant:

2. The plaintiff admits in his petition that he abandoned the premises the 15th of July, 1859; the jury, therefore, in estimating any damages the plaintiff has sustained by the neglect or improper acts of the defendant, cannot consider any benefit or advantage the plaintiff may have derived from the lease if he had continued in possession until the end of the term.

3. The jury cannot, in estimating the plaintiff's damages, take into consideration the costs or value of the improvements made by him on the leased premises beyond $800, nor ought they to consider the fact that the plaintiff abandoned and left the buildings and improvements he had made thereon.

4. If the wall put upon the south side of the leased premises by Goebel fell down not by any fault of the said Goebel, but by reason of negligent conduct of the plaintiff in not protecting it against the water which flowed from the buildings he had erected, then plaintiff cannot recover damages on account of the falling of said wall.

5. The defendant is entitled to recover on his counter-claim the rent secured by the lease remaining unpaid prior to the abandonment of the premises by the plaintiff.

Defendant's instructions refused:

7. The jury are instructed that if they find the defendant has violated any of the covenants contained in the lease, as stated in the petition, it is their duty, in ascertaining the damages, to be governed by the evidence, and they can only allow in their verdict such actual damages as resulted directly to the plaintiff from the defendant's neglect in relation to the stone wall, or from his conduct in relation to the entrance and buildings erected on Seventh street; for the plaintiff is not entitled to damages for any loss of profits in his business, or for any loss of customers or visitors to his garden.

8. If the jury find from the evidence in the cause that the wall which plaintiff put up on the south side of the leased premises was not a good and sufficient wall, defendant was bound to make it so, and, if said defendant failed to make it so, then it became the duty of the plaintiff, for his own protection, to make said wall good and sufficient; and if the jury find from the evidence that plaintiff might easily have made said wall good and sufficient before any appreciable injury would have been sustained by want of a good and sufficient wall to the grounds or buildings of the leasehold premises, and would not do so, he cannot recover in this action any damages in respect to said wall beyond the cost and expense of making the same good and sufficient. Or if the jury shall find that, notwithstanding prompt and diligent action on the part of plaintiff to make said wall good and sufficient after it fell, some injury to the buildings or grounds of the leasehold premises would have been sustained before plaintiff could have made said wall good and sufficient, then plaintiff cannot recover in this action any damages beyond the amount of such injury to such grounds and buildings, and the cost and expense of making said wall good and sufficient.

9. The jury are instructed that if they find from the evidence in the cause that Fulton street has not been opened, the defendant was not bound to build any wall on the south side of the leased premises, and no damages can be recovered against him in respect to his not building such wall in a proper manner, or not repairing the same.

10. The plaintiff is liable to pay rent from the commencement of the lease until Goebel re-entered, and if the jury find Goebel did not re-enter until the month of September, 1859, defendant is liable to pay rent for the three months of June, July and August, 1859, and they should so find on the counter-claim, with interest on that amount.

Glover & Shepley, for plaintiff in error.

We contend that the rule of damages in the case is illustrated by the old saw, “a stitch in time saves nine;” that it is the cost of the repair, and not the damage resulting from the ultimate consequences of the want of repair, which fixes the limit of the legal injury. In other words, it is the immediate and not the remote consequential effect which the law considers in estimating the damages. The doctrine for which we contend is well stated thus: “In assessing damages, the direct and immediate consequences of the injurious act are to be regarded; not remote, speculative and contingent consequences which the party injured might easily have avoided by his own act.--Locker v. Damon. 17 Pick. 288; Thompson v. Shattuck, 2 Metc. 615; Walker v. Swayzee, 3 Abb. P. 136; 2 Ad. & El. (N. S.) 225; Penly et al. v. Watts, 7 Mees. & W. 601; Colby v. Shelton, 2 Barn. & Cres. 278; Walker v. Hutton, 10 Mees. & W. 247; Short v. Callaway, 11 Ad. & E. 28.

Krum, Decker & Krum, for defendant in error.

For every breach of an express contract, the damage to be incurred is the injury suffered; compensation for the breach is the rule.

The distinction between general covenants of warranty in the sale of land and an express covenant by a landlord to his tenant must be kept in mind. A lease is a chattel; the premises return to...