Lewis v. Flour

• Decision Date: 01 July 1924
• Citation: 96 W.Va. 694
• Court: West Virginia Supreme Court
• Parties: Walter H. Lewis v. Welch Wholesale Flour & FeedCo. et al.

96 W.Va. 694

Walter H. Lewis

v. Welch Wholesale Flour & FeedCo. et al.

Supreme Court of Appeals of West Virginia.

Submitted May 29, 1924.

Decided July 1, 1924.

Landlord and Tenant Measure of Damages for Unlawfully Withholding Leased Premises Stated.

Where (possession of leased premises is unlawfully withheld, damages are recoverable against the party unlawfully withholding the same, which may fairly and reasonably be considered as the natural and proximate result thereof, and which damages, special or otherwise, the party in default, in the light of the circumstances, should reasonably have known would result to the party entitled to possession, from his acts in withholding the premises.

Miller, Judge, absent.

Error to Circuit Court, McDowell County.

Action by Walter H. Lewis against the Welch Wholesale Flour & Feed Company and others. Judgment for defendants, and plaintiff brings error.

Reversed; verdict set aside; new trial awarded.

Strother, Sale, Curd S Tucker, for plaintiff in error. Harmon & Howard, for defendants in error.

Lively, Judge:

The only point involved in this writ is the proper measure of damages for retention of real estate wrongfully held by defendant from occupation by plaintiff from April 1, 1921, to July 1, 1922.

On February 25, 1920, Brewster, the owner of the property and then president and principal owner of the Welch Wholesale Flour and Feed Company, defendant, by written deed of lease, leased the property involved in this suit, and another building adjoining it on the same lot, to plaintiff Lewis, for the term of ten years beginning on April 1, 1920, the stipulated rent for the entire property being $625. per month. It was agreed, however, that Lewis should have a reduction of $100 per month until such time as the Flour and Feed company, then occupying the first floor of the one-story brick building (the occupancy of which onestory brick building is the subject of controversy) should vacate, no definite time being fixed for the surrender of the possession of the one-story brick building by the Flour and Feed company. Plaintiff did not get possession of the one-story brick building and has paid to his landlord the sum of $525 per month, having taken possession of the other property leased and not here involved. The entire property was rented for the purpose of conducting an extensive wholesale and retail furniture business therein, and plaintiff needed the one-story brick building for storage and other purposes in connection with the business, In January, 1921, Brewster sold the Flour and Feed company to defendant Swope, who was approached by plaintiff with the request that the one-story brick be vacated and surrendered. Swope refused, to vacate, relying upon the clause in the lease from Brewster to plaintiff which stated that no definite time had been fixed for its surrender; thereupon Lewis served a written notice upon Swope and defendant Flour and Feed company to vacate by April 1, 1921. Upon failure to vacate at that date, a suit for unlawful detainer was instituted by plaintiff, resulting in a verdict for defendant. That suit was brought to this court on writ of error where it was decided that the time of occupancy by defendant Flour and Feed company, provided for in the lease, was a reasonable time, and that defendant, having occupied the premises for one year, such occupancy for such time fulfilled the meaning and intent of the agreement and that the peremptory instruction to find for plaintiff should have been given. Lewis v. Welch Flour & Feed Co., 90 W. Va. 471; 111 S. E. 158. The case was remanded and retried, and judgment rendered by the circuit court in favor of Lewis for possession of the property, the Flour and Feed company to vacate by August 1, 1922. It did vacate on July 1st that year. The judgment for possession reserved to plaintiff the right to institute any proper action to recover damages for the unlawful detention which plaintiff might see fit to institute. It will be observed that it had been judicially determined that defendant had unlawfully occupied the onestory brick building from the 1st day of April, 1921, to July 1, 1922, a period of fifteen months. This action was promptly instituted in assumpsit for damages for detention of the property for that period.

Plaintiff in his declaration as amended alleges the rental value of the property during that time to be $3,750; also for damages which resulted front being compelled to store his furniture in a damp basement $500; for rental of other space in which to store his goods $500; and for loss of profits to his business, which he charges to be $500. Upon the trial the court limited the damages to the rental value of the property alone; and refused to allow evidence of the special damages charged in the declaration to go to the jury. Plaintiff offered evidence to show that he had paid $254.98 for rent of other premises in which to store a portion of his goods; that he had paid out for repairs of furniture damaged by dampness of the basement in which he stored a portion of his. goods, to the amount of $409.50; and that by reason of the damage thus occasioned, although attempted to be repaired, the goods so damaged and repaired were sold at a price less than their market value, the difference between the market value and the price...