Moses v. Old Dominion Iron & Nail Works Co.

• Decision Date: 09 December 1880
• Citation: 75 Va. 95
• Parties: MOSES v. OLD DOMINION IRON AND NAIL WORKS COMPANY.
• Court: Virginia Supreme Court

75 Va. 95

MOSES v. OLD DOMINION IRON AND NAIL WORKS COMPANY.

Supreme Court of Appeals of Virginia.

December 9, 1880

Absent, Moncure, P.

M leased to the Old Dominion Iron and Nail Works Company a warehouse for three years. A covenant by M was that if the building should be so damaged by fire or other cause as to render it untenantable the lease should be void; and the lessees covenanted that they would leave the premises in good repair, ordinary wear and tear excepted. The lessees took possession of the warehouse and stored therein a large quantity of iron and nails, and during a severe storm the western portion of the building, including all the floors and the roof, fell down. M claimed that the Company were liable for the damages, and this the Company denied; and M, with the assent of the Company, repaired the building, and the Company took possession and held as tenants under the lease. M then sued the Company on the case for the damages done to the building. HELD:

1. It was competent for M to sue in an action on the case.

2. Wherever the injury to leased premises is permanent, the lessor or reversioner may have an action on the case; and it is not for the tenant to say that an action of covenant may be maintained against him for the same cause; for the lessor may have at his option either remedy.

3. The action on the case may be brought pending the lease; and the action will not be prevented by the covenant of the lessee to leave the premises in good repair.

4. The measure of the lessee's liability is not what the lessor may think proper to expend, but what is necessarily expended in restoring the property to its former condition, or such sum as will be sufficient to compensate the lessor for the damage and loss sustained by the injury to the property.

This was an action on the case in the circuit court of the city of Richmond, brought by Alfred Moses against The Old Dominion Iron and Nail Works Company, to recover damages for injury to a house of which the defendant was tenant of the plaintiff. Upon the trial there was a verdict and judgment for the defendant, and a writ of error to this court. The case is fully stated by Judge Staples in his opinion.

Keiley, for the appellant.

Wood Boulden, Jr., F. W. Christian and H. H Marshall, for the appellee.

OPINION

STAPLES, J.

This is an action of trespass on the case, brought in the circuit court of Richmond by Alfred Moses against the " Old Dominion Iron and Nail Works Company."

The history of the controversy, briefly stated, is as follows:

In December, 1875, the plaintiff leased to the defendants a warehouse in the city of Richmond, for the term of three years, commencing the 1st of January, 1876, at the rent of five thousand four hundred dollars. It was one of the provisions of the lease that if the building should be so damaged by fire or other cause as to render it untenantable the lease should be void. The defendants on their part covenanted that they would leave the property in good repair, ordinary wear and tear excepted. The defendants took possession of the premises on the 1st of January, 1876, and proceeded to store therein iron and nails in large quantities. On the 29th of March, 1876, the western portion of the building, including the floors and the roofs, fell down, carrying several hundred tons of iron--the walls, however, with the exception of a small proportion, remaining intact.

Shortly after the occurrence, the plaintiff proposed to the defendants to submit to arbitration the question of their liability for the damage to the building, and he further proposed in the meantime to go on and put it in complete repair, that as little delay and loss as possible might be occasioned in the use of the premises. The defendants declined the proposition to arbitrate, denying they were in any manner responsible for the damage. But they made no objection to the plan of repairing the premises as suggested by the plaintiff. The latter thereupon proceeded at once to make the repairs to the building at an expense of $2,654; the defendants employing the architect to advise with in respect to the plan of the work. The plaintiff, however, protesting throughout that he did not mean to waive his right of recovery against the defendants for compensation for the damage he had sustained.

Upon the completion of the work the defendants resumed possession of the premises, paying therefor the agreed rent except for the two months during which the building was undergoing the repairs.

In September, 1876, the plaintiff instituted his suit to recover damages sustained by him arising from the injury to the building. Upon the trial in the court below he introduced testimony tending to show that the injury resulted from the misconduct of the defendants in overloading the building above its safe capacity, and its fall was due to this cause.

On the other hand, the defendants offered evidence tending to show that the building was not loaded up to the safe capacity of such a warehouse if properly planned and constructed; and that its fall was attributable not to overloading, but to defect in construction. The evidence being concluded, the plaintiff asked for the following instructions:

The jury are instructed that notwithstanding the clause in the lease providing that the lease should be void on the building becoming so damaged by fire or other accident, as to render it untenantable, such avoidance could not follow at the option of the tenant if the fire or other accident was caused by the negligence or misfeasance of the said tenant. Which instruction the court refused to give; and the plaintiff excepted. The first point to be considered is, whether this ruling of the court is correct.

It will be perceived the only proposition affirmed by the instruction is, that the defendants could not at their option avoid the lease if the accident to the building was occasioned by their negligence, notwithstanding there was a provision in the lease it should be void if the building became so damaged as to become untenantable. It is difficult to see what the plaintiff expected to gain by affirming the validity or the continuance of the lease. The action was not for the rent, but for the recovery of damages occasioned by the alleged misconduct of the defendant in overloading the building.

The right of the plaintiff to maintain his action and to recover damages could not be at all affected by the continuance or discontinuance of the lease. And if the circuit court had given the instruction, it would not have aided the jury in deciding the question submitted to them. However correct, therefore, the instruction may be as an abstract proposition of law, it had no relevancy to the issue involved, and the circuit court committed no error in refusing it. And if the learned judge had stopped there the plaintiff could have had no just ground of complaint.

But the court went further, and of its own accord gave the following instruction:

" If the jury shall believe from the evidence that the plaintiff, after the accident, with a full knowledge of all the circumstances, entered upon the premises, and with the consent of the defendants, but with their disclaimer at the time and at all times thereafter of any responsibility for the accident, employed at his own expense agents and workmen to repair the

...