Hodges v. Fries

• Decision Date: 22 June 1894
• Citation: 15 So. 682,34 Fla. 63
• Parties: HODGES v. FRIES et al.
• Court: Florida Supreme Court

15 So. 682

34 Fla. 63

HODGES v. FRIES et al.

Florida Supreme Court

June 22, 1894

Appeal from circuit court, Duval county; James M. Baker, Judge.

Action by Sarah J. Hodges against A. P. Fries & Co. Judgment for plaontiff, and plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. In a suit by a tenant against a landlord to recover damages for a failure of the latter to deliver possession of the leased premises according to contract, the measure of damages generally is the difference between the rent agreed upon and the value of the premises to the tenant for the term, and such other damages as result directly and necessarily as the natural consequence of the breach of the contract, and are capable of being estimated by reliable data.

2. Profits that are speculative or conjectural are not generally regarded as elements in fixing damages, not because there is anything in their nature per se which demands their rejection, but because they cannot be estimated with reasonable certainty.

3. On appeal, the findings of a referee on the evidence will be accorded the same consideration and weight as are given to the verdict of a jury, and, where there is sufficient testimony to sustain the findings, it will not be set aside unless the testimony against them is so strong as to indicate that due consideration had not been given to the entire testimony.

4. If a plaintiff, by reasonable exertions or care, could have prevented damages resulting to him by reason of the wrongful act or acts of the defendant, he should have used such exertions and care to avoid the damage, and, so far as he could thus have prevented them, he cannot recover therefor.

COUNSEL

Cooper & Cooper, for appellant.

H Bisbee, for appellees. Mrs. Hodges, the appellant, sued A. P. Fries and J. W. Morrison, as partners doing business under the firm name of A. P. Fries & Co., for damages for the breach of an alleged rental contract. The declaration filed in the case contains two counts. The first one alleges, in substance, that appellees, on the 27th day of February, 1889, contracted to rent to appellant one-half of a store, numbered 41 East Bay street, in the city of Jacksonville, to be used and occupied by her for one year from the 15th day of March, 1889, for the sum of $35 per month, and that appellant on said date demanded possession of the half of said store, and possession of the same was postponed by appellees on the pretext that the said store was being repaired and fitted up for her use, and as soon as said repairs were finished, which would be at an early day, possession of the half of said store would be delivered to her; that appellant was delayed from time to time until the 15th day of April following, when she was refused possession of the half of said store by appellees who then informed her that they had rented the entire store to other parties. The damages sued for are $5,000, and the alleged causes of the same are as follows, viz.: That appellant broke up and abandoned a lucrative millinery business in which she was engaged in Lake City, Fla., and moved a large and valuable stock of millinery goods to Jacksonville, and also moved herself, with her large and dependent family of children, to the latter place, on the faith of said contract, and relying upon the promise of appellees to give her possession of the half of said store on the 15th day of March, 1887, when and where she could resume her business, she having good prospects of a compensatory spring trade, out of which she had every reason to have expected to make a large sum of money, to wit, $5,000, all of which profits and gain she lost in consequence of the failure of appellees to let appellant have the half of said store and appellant incurred further loss and damage, in consequence of the violation of said contract, in the unnecessary expense in breaking up her business in Lake City and having to support her family in Jacksonville, without being able to engage in business, between the 15th of March, 1889, and the 15th day of April following, she being led to believe from assurances from appellees that she would soon get possession of the half of said store, whereas she had not been able to resume her said business up to the time of bringing her suit. The second count alleges that, subsequent to the making of the contract for the half of said store, appellees offered to rent to appellant the entire store for $50 per month for one year, and she was given the option of taking the entire store at any time before the repairs then being made on it were completed; that before said repairs were completed, to wit, on the 1st day of April, 1889, appellant decided to take the entire store on the terms mentioned, and so informed appellees, who then and there refused to let her have said store, in whole or in part, and then informed her that they had rented the entire store to other parties. By reason of the failure to obtain the possession of said store, it is alleged that appellant was damaged in the sum of $5,000, for the reasons and on the grounds set forth in the first count of the declaration.

A demurrer to so much of the specifications of damages in the declaration as are based upon the claim for loss of profits was sustained, and appellees filed two pleas, one denying the making of the contract for the rent of either the half or the whole of the said store as alleged, and the other alleging that appellant, after entering into negotiations for the rent of the whole or half of the said store, declined and refused to take a lease of either. The declaration was subsequently amended by repeating in substance the allegations of the original as to the coutract for the rent of the said store room, and the refusal of appellees to comply with their said contract, and alleging damages as follows, viz.: That appellant incurred great expense and outlay of money in moving herself and family, consisting of several young dependent children, from Lake City, Fla., where they had resided for many years, to Jacksonville; the cost and expense of supporting appellant and her children, during the time she was waiting to get possession of the half of said store, amounting to the sum of $500; the cost and outlay of money in freight on the shipment of a large stock of millinery goods, of value the sum of $5,000, from Lake City to Jacksonville, and in money paid for drayage, packing and storing said goods, as well as loss of goods and other legitimate expenses and losses in and about the removal of said stock of goods, and in and about the keeping of the same preparatory to appellant's going into said store. It is further alleged that appellees well knew when they entered into said contract that appellant was engaged in the millinery business in Lake City, and by said contract they induced her to break up and abandon said business in Lake City, which it is alleged was lucrative and paying, and move her said business and stock of goods to Jacksonville, by promising to rent to her one-half of said store, and to deliver possession of the same at the time mentioned, for the purpose of resuming her said business in Jacksonville. It is also alleged that appellant was not able to procure another store equally favorable to her business after appellees refused to give her possession of the one she had rented, or during the time she was waiting to get possession of the same.

The bill of particulars filed with the amended declaration consists of: Cost of moving appellant and family from Lake City to Jacksonville, and for support of family while waiting to get possession of store, $500; cost of moving stock of goods, freight, drayage, loss of goods, including storage, $1,000; interest on value of goods, $500.

On the issues presented by the pleas mentioned, the case was tried before a referee, who rendered judgment in favor of appellant for $5.50 and costs, from which she has appealed.

OPINION

MABRY, J. (after stating the facts).

The first error assigned and presented here in behalf of appellant is that the court erred in sustaining the demurrer to that part of the declaration claiming damages for loss of supposed profits from trade. Counsel for appellant say that 'the declaration and the plaintiff's joinder in demurrer show that the damages claimed for loss of alleged profits in trade were based on the legal proposition that where a store is rented for the purpose of trade, and in which to resume a business already under way, which necessarily enters into the contemplation of the parties, such loss of trade forms a ground of damages, if proven; the basis of proof being what she had annually realized net before the breaking up [of the business].'

We can only look to the declaration in determining its sufficiency on demurrer, and what is stated in the joinder in demurrer to the declaration cannot affect its allegations on such issue. From the original declaration we understand that appellant claimed as recoverable damages profits that she had good reasons to expect from a millinery business prevented or postponed without cause by the refusal of appellees to let her have the half of the store room mentioned. The contract for the rent of the store, and which it is alleged that appellees violated, was executory, and, according to the allegations of the declaration, their action in the premises was without excuse. No money was paid on the lease contracted for, but a price was fixed, and possession was refused without casue. Under such circumstances, the tenant would without doubt be entitled to recover the difference in value between the price agreed on and the rental value of the room at the time of the breach of the contract. The original declaration claims more than that as damages. The feature...