Ludwigsen v. Larsen

• Decision Date: 02 June 1924
• Docket Number: No. 24.,24.
• Citation: 227 Mich. 528,198 N.W. 900
• Parties: LUDWIGSEN v. LARSEN.
• Court: Michigan Supreme Court

227 Mich. 528

198 N.W. 900

LUDWIGSEN

v.LARSEN.

No. 24.

Supreme Court of Michigan.

June 2, 1924.

Error to Circuit Court, Manistee County; Hal L. Cutler, Judge.

Action by Ingeborg Ludwigsen against Fred C. Larsen. Judgment for plaintiff in amount less than prayer for and she appeals. Reversed and new trial ordered.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Howard L. Campbell, of Manistee, for appellant.

F. H. Stone and Thos. Smurthwaite, both of Manistee, for appellee.

SHARPE, J.

On March 1, 1918, plaintiff, under an oral contract, leased certain premises, including furniture, dishes, etc., in the city of Manistee, from defendant, for the purpose of conducting a restaurant therein. The premises also contained living apartments. Heat, water, and light were to be provided by the defendant. The rent agreed upon was $20 per month, payable monthly. No time limit was fixed. In the fall of that year, by mutual consent, the rent was increased to $25 per month. Plaintiff occupied the premises until April, 1922. She was then indebted for rent past due in the sum of $90. On the 6th day of that month, defendant caused a writ of attachment to be issued, under which the sheriff levied upon certain of plaintiff's goods in the premises. The attachment was afterwards dissolved. Defendant. personally, put a fastening on the front door, and caused the light and water to be shut off. Plaintiff soon after vacated the premises and began this action in trespass on the case to recover the damages she sustained by reason of her eviction.

The declaration alleges that for two years prior to her eviction plaintiff--

‘was doing a large restaurant business, which vielded her a net profit of about $150 per week. * * * That by reason of her being unlawfully ousted and ejected by the defendant, plaintiff has suffered a loss of a spring, summer, and fall restaurant business, aggregating a loss to her of $4,950.’

She also claimed damages in the sum of $75 for the value of certain meats, milk, and vegetables in the ice box when defendant took possession, and which were allowed to spoil and become worthless.

The trial court instructed the jury:

‘I charge you, as a matter of law, that the defendant, not having given this written notice, as he was required to do by the law of this state, that in evicting her at the time, and in the manner he did, that he was without authority and unwarranted in law in so doing.’

He submitted the question of her right to recover for the articles of food which had become spoiled, but declined to submit plaintiff's claim for damages resulting from the interruption of her business due to her eviction. Plaintiff reviews the judgment entered on the verdict in her favor for $75 by writ of error. The assignments relate to the rulings of the court and the instruction that she could not recover damages for the injury to her business.

[1] The tenancy created by the parol agreement, with the rent payable monthly, could have been terminated by defendant at any time by giving plaintiff a month's notice to quit, expiring on the day of the month the rent became due. 3 Comp. Laws 1915, § 11812; Haines v. Beach, 90 Mich. 563, 51 N. W. 644. He could have served a demand for possession within seven days as provided for in section 13240, 3 Comp. Laws 1915, and, in case the rent then due was not paid within that time, he could have begun proceedings as therein provided to recover possession. He did neither of these things. His acts in fastening the outer door and causing the light and water to be shut off amounted to a constructive eviction of the plaintiff. 16 R. C. L. 688; Dunton v. Sweet, 210 Mich. 525, 177 N. W. 962;Lawrence v. Rapaport, 213 Mich. 358, 181 N. W. 1011. The statute provides an adequate remedy in such cases, and should be resorted to. Had the defendant been able to peaceably obtain possession, a different question would be presented. The acts by which he compelled plaintiff to abandon the premises were unlawful and tortious, and must be regarded as a forcible expulsion of her by him. The instruction of the trial court that what he did ‘was without authority and unwarranted in law’ was fully justified.

Counsel do not contend that, when a tenant's business has been broken up by an unlawful ouster by the landlord, he may not recover damages therefor. The question here presented is whether loss of profits may be considered as an element of such damages. In actions on contract, where the profits are in their nature contingent on opportunity, successful operation, and other uncertain happenings, courts have been loath to allow them to be considered as elements of damage, although, in certain cases, where found to have been in contemplation of the parties, the jury have been permitted to consider them with the other proof submitted in determining the just compensation to which plaintiff was entitled. Fell v. Newberry, 106 Mich. 542, 64 N. W. 474;Industrial Works v. Mitchell, 114 Mich. 29, 34, 72 N. W. 25;Quay v. Duluth, etc., R. Co., 153 Mich. 567, 116 N. W. 1101,18 L. R. A. (N. S.) 250.

[2][3] The holding, however, in this state, has been quite uniform that in an action of tort such as we have here a more liberal rule will be applied. When the amount of profit lost by the wrongful act of a landlord can be shown with reasonable certainty, and is not so remote, speculative, or contingent as to form no reliable basis for a determination as to loss, evidence of the profits gained in the conduct of a business and the probability of their continuance, had not the business been interrupted by the ouster, may be shown and may constitute a measure by which, in addition to any other relevant facts which may be established, the damages sustained by the interruption of the business may be fixed. The jury should be instructed that the past profits may not be taken as the exact measure of future profits, but may be considered and allowed such weight as they may be found to be entitled to, in arriving at a fair compensation for the loss sustained.

What has been said is but a synopsis of the exhaustive opinion written by Mr. Justice Christiancy in Allison v. Chandler, 11 Mich. 542. We have used the language employed by him quite freely without quoting it. This decision has, we think, been quoted from and cited approvingly by this and other courts and text-book writers more often than any other which appears in our reports. The Michigan cases appear in the footnote.¹

The reasoning in the recent case of Raniak v. Krukowski, 226 Mich. 695, 198 N. W. 190, is instructive. There are authorities which hold otherwise. 16 R. C. L. 698, and note; Ann. Cas. 1912A, 859. The reason for such holding is based on the fact that the past profits may have been unusually large or affected by exceptional circumstances. There is always opportunity to develop such fact on cross-examination. As before stated, the amount of past profits is not conclusive; it is but an element to be considered by the jury under cautionary instructions as to the use to be made of it.

Counsel rely on Marsh v. Bristol, 65 Mich. 378, 32 N. W. 645;Murphy v. McIntyre, 152 Mich. 591, 116 N. W. 197, and McIntyre v. Murphy, 153 Mich. 342, 116 N. W. 1003,15 Ann. Cas. 802, in support of the instruction given. In the Marsh Case it appeared that Bristol had obtained possession peaceably. The injuries for which plaintiff claimed damages were those sustained by him in an...