McCulloch v. Lake & Risley Co.

• Decision Date: 04 June 1918
• Citation: 103 A. 1000,91 N.J.Law 381
• Parties: Mcculloch v. LAKE & RISLEY CO.
• Court: New Jersey Supreme Court

103 A. 1000

91 N.J.Law 381

Mcculloch

v. LAKE & RISLEY CO.

Supreme Court of New Jersey.

June 4, 1918.

Appeal from District Court of Atlantic City.

Action by Joseph S. McCulloch against Lake & Risley Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued February term, 1918, before swayze, TRENCHARD, and MINTURN, JJ.

Herbert R. Voorhees, of Atlantic City, for appellant. Theodore W. Schimpf, of Atlantic City, for respondent.

swayze, J. The plaintiff leased a property in Atlantic City of the defendant from July 6th to October 1st. The terms were agreed to on July 6th, and the plaintiff at once sent his check to the real estate agents for the first payment. Meantime, and before the lease was in fact executed, the defendants leased to another customer at $1,200 instead of $800 for the season. The plaintiff refused to release the defendant, and brought suit for damages for breach of the contract. But two questions are raised: (1) Was the contract complete since both parties contemplated the execution of a lease? (2) What was the proper measure of damages? The first question is answered for us in the affirmative by the rule in Wharton v. Stoutenburgh, 35 N. J. Eq. 266, which has been followed in Trenton & Mercer County Traction Co. v. Trenton, 90 N. J. Law, 378, 101 Atl. 562, the opinion in which has recently been approved by the Court of Errors and Appeals, 103 Atl. 1054.

The question of the measure of dam ages is not authoritatively answered by our own decisions. The case bears a resemblance in this respect to cases of breach of covenant to convey (Gerbert v. Trustees, 59 N. J. Law, 160, 35 Atl. 1121, 69 L. R. A. 764, 59 Am. St. Rep. 578), but the resemblance is superficial. The rule seems well settled that the lessee is entitled to recover at least the value of his term (Sedgwick on Damages, §§ 986, 1022; Trull v. Granger, 8 N. Y. 115; Jewett v. Brooks, 134 Mass. 505). In a recent opinion Judge Sheldon has collected authorities. Neal v. Jefferson, 212 Mass. 517, 99 N. E. 334, 41 L. R. A. (N. S.) 387, Ann. Cas. 1913D, 205. This was the rule followed by the trial judge.

Let the judgment be affirmed, with costs.