James Et Ux v. Kibler's Adm'r

• Decision Date: 17 December 1896
• Citation: 94 Va. 165,26 S.E. 417
• Parties: JAMES et ux. v. KIBLER'S ADM'R. KIBLER'S ADM'R. v. JAMES et ux.
• Court: Virginia Supreme Court

26 S.E. 417

94 Va. 165

JAMES et ux.

v.KIBLER'S ADM'R.

KIBLER'S ADM'R.

v.JAMES et ux.

Supreme Court of Appeals of Virginia.

Dec. 17, 1896.

Lease—Abandonment—Damages — Purchase of Lease by Lessor.

1. Where a lessee abandons and refuses to carry out the contract, and the lessor, after due notice, sells the lease at public auction, the damages for the whole loss, computed at present value, may be recovered at once.

2. A lease for five years, with a provision that if at the end of the five years the lessee desires to retain the premises for the next five years hemay do so on giving six months' notice, is not a present lease for ten years.

3. Where a lessee refuses to enter under or carry out his lease, the fact that the lessor buys the lease at the public auction at which it is sold does not prevent his recovering damages for breach of the contract.

4. It is for a lessee sued for breach of his contract to prove that he is entitled to greater credit than the amount for which the lease was sold at public auction.

Appeal from corporation court of Danville.

Action by R. A. James and wife against P. W. Kibler's administrator. Prom a judgment for plaintiffs for a less amount than prayed, they appeal. Defendant takes a cross appeal. Reversed on plaintiffs' appeal.

Reily & Leigh and Berkeley & Harrison, for plaintiffs.

Peatros & Harris and A. J. Montague, for defendant.

HARRISON, J. The plaintiffs leased certain real estate to the defendant's intestate and others for a specified period, the lessees agreeing to pay therefor an annual rental of $3,000, payable in monthly installments of $250. The lessees not having taken possession of the demised premises, the plaintiffs gave them notice that the premises were ready for their use and occupation. This notice being disregarded, they were notified in writing that unless they complied with the terms of the contract of lease on or before a certain day named in the notice the lease would be put up at public auction, after due advertisement, and the lessees held chargeable to the plaintiffs for all costs, damages, and deficit, if any, between the contract and what could be obtained at the sale. No attention being paid to this notice, the lease was duly sold at public auction, and one of the plaintiffs, being the highest bidder, became the purchaser at $1,450 per annum, or $120.83 1/3 per month, leaving a deficit of $1,550 per annum, or $129.16 2/3 per month. Thereupon the plaintiffs brought this action to recover as damages the sum that would have been due as rents at the date of the auction sale, and the value at that date of each future monthly deficit of $129.16%, and costs and expenses of sale, as the just measure of compensation due from the lessees for their total breach of the contract.

There is filed with the declaration a bill of particulars showing the present value of each monthly deficit to the end of the lease, ascertained according to well-established rules, and the other items of damage claimed, the whole aggregating $6,739.33 1/3 as of the date to which the calculation is made.

The question presented is whether the plaintiffs are entitled to recover damages in solido for the breach of the contract, or whether they can only recover the amount of deficit due under the contract at the date of the judgment.

The plaintiffs asked for an instruction covering the former view, which was refused, and in lieu thereof one was given on behalf of the defendant embodying the latter view.

The court below seems to have regarded the plaintiffs' action as one to recover installments of rent falling due under an existing and continuing contract, rather than as a suit to recover damages for the complete breach of a contract.

There was an entire abandonment of the contract by the defendant, —a refusal on his part to carry it out. He stood by, after due notice in writing, and acquiesced in the lease contract being sold at public auction, fully informed that he would be held responsible for whatever difference there might be between the price obtained at the auction sale and that which he contracted to pay. In such a case the plaintiff is not entitled to recover for rent of the premises, but he has compensation for the injury sustained in consequence of the breach of the contract, and his measure of damage is the difference between that which he was to receive under the violated contract and that which he does receive from the purchaser of the lease at either a private or public sale fairly made.

Where the wrongful act of the defendant is of...