Kenny v. Collier

• Decision Date: 01 November 1888
• Parties: KENNY v. COLLIER.
• Court: Georgia Supreme Court

8 S.E. 58

79 Ga. 743

KENNY v. COLLIER.

Supreme Court of Georgia

November 1, 1888

Syllabus by the Court.

Breach of contract gives a right of action, whether special damages be alleged or not, and, therefore, extruding from the declaration all averments of special damages will not warrant the court in dismissing the action.

Where there is a contract, at a specified sum, for the rent of premises for one year, from and after a future day, in an action thereon by the tenant against the landlord, for not admitting him into possession, the measure of damages is the excess in the value in the term over the amount agreed to be paid as rent. If no excess, nominal damages only are recoverable. Anticipated profits from a business intended to be carried on by the tenant upon the premises are not recoverable.

Error from superior court, Fulton county; MARSHALL J. CLARKE Judge.

Plaintiff Kenny, sued defendant, Collier, executor, on breach of contract for refusing possession of premises leased to plaintiff. The court below sustained defendant's demurrer, and dismissed the suit, whereupon plaintiff brings error.

John C Reed and W. T. Moyers, for plaintiff in error.

Hoke & Burton Smith, for defendant in error.

BLECKLEY C.J.

The action was not in any regular technical form, either common-law or statutory. The declaration simply stated facts and prayed for process. It annexed, by way of exhibit, a contract under seal, executed in May, 1885, by which the defendant "rented and leased" to the plaintiff a certain store-room and basement, for the term of one year, commencing on the 1st of October thereafter, at $50 per month, payable monthly in advance. It alleged readiness to perform, and a virtual offer to perform, on plaintiff's part, and a breach of the contract on defendant's part in letting the premises to other parties, and refusing to admit the plaintiff into possession. It laid the damages at $10,000, and averred that the plaintiff waited at great expense until the 1st of October, relying upon the contract, and believing that he would be put in possession, and be permitted to conduct on the premises other business for which they were leased, and in the mean time was offered by a third person $500 to yield up his right to the property, which he declined. It alleged that the defendant knowingly, willfully, and without cause violated his contract, and thereby subjected the plaintiff to the loss of this $500, to great loss and expense in waiting for the time to arrive for entering into possession, and to the loss of profits from his business for the year covered by the contract, which profits would not have been less than $600 per month. It nowhere discloses what the plaintiff's business was, or that the defendant knew or had stipulated anything concerning it. The written contract was silent as to any business or any specific purpose for which the premises were let, or were to be occupied and used. The action was commenced in February, 1886. The declaration was demurred to as setting forth no cause of action, and because the alleged damages were too remote, not susceptible of exact computation, and consisting of a claim for profits from a collateral enterprise; which claim, the demurrer insisted, should be stricken out, as well as the claim for $500 offered the plaintiff by a third person. To so much of the declaration as referred to loss and expenses incurred while waiting for the term to begin, the defendant also demurred, because they were not subjects of recovery, nor pleaded with sufficient clearness. The plaintiff abandoned his claim for the $500, and for loss and expenses incident to his waiting. The court not only sustained the demurrer as to the claim for profits, but dismissed the action. Both these rulings are drawn in question by the bill of exceptions.

1. There can be no doubt that dismissing the action was a hasty and inconsiderate...