Leick v. Tritz

• Decision Date: 06 April 1895
• Citation: 62 N.W. 855,94 Iowa 322
• Parties: JOHN LEICK v. JOHN TRITZ, Appellant
• Court: Iowa Supreme Court

62 N.W. 855

94 Iowa 322

JOHN LEICK v. JOHN TRITZ, Appellant

Supreme Court of Iowa, Des Moines

April 6, 1895

Appeal from Jackson District Court.--HON. A. J. HOUSE, Judge.

The defendant leased the plaintiff his mill, operated by water power, for a term of years. The lease was made in May, 1890 and in March, 1891, the dam was destroyed by a flood, and the use of the mill was lost to plaintiff; and this action is to recover damages for a breach of the terms of the lease, in not repairing the dam. Judgment for plaintiff, and the defendant appealed.

Affirmed.

Eli Cole, Jr., for appellant.

R. R Farrell and Wm. Graham for appellee.

OPINION

Granger, J.

I.

The following is a clause of the lease, as to repairs: "If anything breaks in said mill, or wears out on the mill or dam, that costs over ten dollars, but under two hundred dollars, at one time, that I will repair; but said John Leick must pay for everything of ten dollars and less than ten dollars what breaks or wears out in the mill or dam. I, John Tritz, hereby bind myself to repair the mill so that rye flour can be made on the burr, on or before the first day of August, 1890; but said John Leick must pay me seven per cent. on the money what said repairing will cost. If fencing must be done on said premises, I'll furnish the wire only." The issues presented the question whether or not the repairs would cost less than two hundred dollars; and the court instructed the jury that, if the cost of such repairs would exceed the sum, defendant was not required to make them, but, if they would not, then he was required to make them. The jury, on that issue, found for the plaintiff, and the finding is supported by the evidence.

The first question to be considered arises upon the instructions as to the measure of damages. They are as follows: (8) Where a tenant has paid the rent reserved, and is, by fault of the landlord, deprived of the use of the leased premises, the general rule for the measure of his damages is the full rental value of the leased premises for the term; and if the rent has not been paid, the measure of tenant's damages is the difference between the actual rental value (that is the value of the use of the premises) and the rent reserved, estimated for the terms of the lease. (9) If, therefore, you find that the plaintiff is entitled to recover on the alleged cause of action set out in his petition, in estimating the amount of his recovery you may allow him the full value of the premises of which you find he was deprived, if any, by the fault of the dependant from the time said dam, in the reasonable diligence, could have been repaired by the defendant, to the expiration of the time at which the rent was paid. You may also allow the plaintiff the difference between the rent reserved and the actual value of the premises during the remainder of the three years from date of lease. If you find the rental values above specified and the rent reserved and unpaid are equal, then you should allow plaintiff no more than nominal damages. By the terms 'rental value,' or 'value of the use of the premises,' is meant that amount for which, in the ordinary course of business, said premises would bring, or could be rented for. The fourth and fifth year named in the lease being on contingency of sale, plaintiff cannot recover therefor." The italicized portions appear so in the record, to indicate the particular language complained of. The criticism is directed to the eighth instruction, but we think both are necessary to an understanding of the rule, as applied by the jury. The first instruction states an abstract proposition of law, and the other gives it application to the facts of this case. It is urged that the eighth instruction is faulty because it assumed, unwarrantably, that the plaintiff was "deprived of the use of the premises by the fault of the landlord"; and it is said that there is no evidence tending to show other than that plaintiff remained in possession until he left, June 15, 1892. The argument is a clear misapprehension of the issues. The action is not for damages in being deprived of the possession or occupancy of the premises, in such a sense, but by being deprived of the use contemplated by the lease, because of the loss of the dam, whereby the mill could not be used. That fact is not open to question in the case. This...