Russell v. Olson
| Decision Date | 22 June 1911 |
| Citation | 133 N.W. 1030,22 N.D. 410 |
| Parties | RUSSELL v. OLSON |
| Court | North Dakota Supreme Court |
Rehearing denied December 21, 1911.
Appeal from District Court, Ward county; Goss, J.
Action by T. F. Russell against Olaf Olson. From a judgment for plaintiff, defendant appeals.
Reversed and new trial ordered.
Decision reversed, the judgment vacated and set aside, and a new trial ordered.
L. J Palda, Jr., John E. Greene, and C. D. Baker, for appellant.
F. B. Lambert, for respondent.
POLLOCK, Special Judge. MORGAN, Ch. J., not participating, and GOSS, J., took no part in the decision; Honorable CHAS. A. POLLOCK, Judge of the Third Judicial District, sitting in his stead by request.
The defendant rented to plaintiff a certain hotel in the city of Minot. One of the clauses in the contract reads as follows: "The party of the first part (Olson) agrees, during the continuance of this lease, to furnish the heat for the proper heating of the same, from the 1st day of October to the succeeding 1st day of May during each year, from the date hereof." The action is for damages for violation of this condition of the lease. Plaintiff alleges that under the lease he entered upon said premises October 1, 1905, and remained there until October 30, 1906, when he was evicted by reason of the failure of the defendant to furnish heat for said premises. The written lease made by the parties was for and during the terms of five years from October 1, 1905. The damages claimed were: First, for $ 100 per month from October 1, 1905, to May 1, 1906, $ 700 in all; second, $ 1,000 per year from October 30, 1906, for the remaining four years' term of the lease, total $ 4,000; third, because he had bought certain furniture especially fitted for the building, and paid therefor $ 2,000, and which, when moved from the said building, had no value in excess of $ 500, and on that cause of action claims $ 1,000 damages. Defendant entered a general denial, except that he admitted making the lease as alleged by plaintiff, and then set forth a counterclaim for damages: First, for putting in partitions and injuring the floors, $ 100; second, abandoning the place without cause, damage $ 4,800, being the rental of said premises for the unexpired term; third, taking away the keys of the building, $ 50; fourth, leaving the premises in a dirty and filthy condition, $ 75,--making a total of $ 5,025. A general denial to the counterclaim was set forth in the reply. The cause was tried before the court and a jury, and during the time of the trial plaintiff was permitted to amend his complaint by adding thereto the following: "That said furniture and fixtures were especially adapted to said building and rooms and especially useful therein; that upon plaintiff's eviction from said building as above alleged there was no other building or rooms in which to place said furniture, and the same were of no value in excess of the sum of $ 500, and the said plaintiff has sustained loss on said furniture and fixtures by reason of the foregoing in the sum of $ 1,000." At the close of the case, defendant, moved for a directed verdict, which not only leveled at plaintiff's right to a verdict, but also asked for a verdict in favor of the defendant for $ 135. This motion was overruled and the ruling properly excepted to. The jury returned a verdict in favor of the plaintiff for $ 865.75, and the verdict shows that the same was arrived at as follows: Damages to plaintiff on hotel claim, $ 350; damages to plaintiff on furniture claim, $ 593.75. As against which the defendant was allowed: For loss of keys, $ 10, and for dirty condition of the premises when left, $ 68. Thereafter, certain exceptions were filed to the charge, in the following language only: "Comes now the defendant in the above-entitled action and excepts to the following provisions of the charge of the court, given to the jury in the above-entitled action, covering pages 7 to 16, inclusive, and reading as follows, to wit: . . ." Then follows the paragraphs of the charge excepted to. No grounds for the exception were mentioned. Judgment was thereafter entered in favor of the plaintiff for the sum of $ 865.75. From the judgment defendant appeals. In the statement of the case are found sixty-seven specifications of error, mostly with reference to the admission of testimony, and directly attacking its character as a proper mode of proving the damages claimed. No motion for a new trial was made, so that the matter comes before this court only to review the errors of law occurring at the trial.
1. Questions of fact cannot be reviewed by this court on appeal from a judgment in any action tried by a jury, unless a motion for a new trial was made in the court below. Rev. Codes 1905, § 7226; McNab v. Northern P. R. Co. 12 N.D. 568, 98 N.W. 353.
In justice to the learned judge who tried this case, it is only fair to suggest that if counsel had made a motion for a new trial, and thus given the court below a chance to review the entire record, it is safe to say that the expense of an appeal would have been saved. The writer hereof, through long experience as a trial court, well knows the difficulties attendant upon a trial, where, as shown by the record herein, more care should have been given to the preparation of the pleadings and the elimination of all those items, on both sides, which serious reflection would have shown could not have been allowed. While constant demand upon a busy practitioner's time will often excuse lack of the most careful preparation for the actual trial of a case, it will not justify the trouble and expense incident to an appeal, without first calling upon the court below to correct any errors which occurred at the trial.
2. The exceptions taken to the charge in this case cannot be considered. They should have pointed out some definite or specific defect in the character of the instructions given. Counsel should, by his objection, lay his finger on the precise point, or upon the precise request refused, or alleged error of the court. St. Croix Lumber Co. v. Pennington (1882) 2 Dak. 467, 11 N.W. 497.
3. There was competent evidence given both pro and con upon the question of whether the defendant had violated his contract with reference to the heat; and we cannot, in the absence of a motion for a new trial, pass upon the sufficiency of this evidence to warrant the finding that the defendant had failed to comply with the full terms of the contract in relation thereto, and must proceed, therefore, in the further examination of the case, assuming that the defendant had violated his contract.
4. Certain questions were asked, during the time of the trial, by counsel for the plaintiff, by which he sought to establish the amount of damages alleged to have been sustained during the time that he remained in the hotel; likewise questions attempting to prove the damages of the furniture as alleged in the amended paragraph of the complaint. To most all of these questions the defendant interposed the objection that the same were incompetent, irrelevant, and immaterial, not constituting a proper measure of damages, and, in many cases, that the plaintiff was not competent to answer the question asked. Defendant further claims that an error was committed in refusing to grant the motion of defendant for a verdict. These alleged errors of law occurring at the trial are properly before us in the statement of the case, and must receive consideration at our hands.
5. Did the failure of defendant to furnish the heat according to his contract constitute in law a constructive eviction of plaintiff from the premises? Assuming, as we must in this case, that defendant was at fault in failing to furnish the heat contemplated in the contract, plaintiff was clearly within his rights, under subparagraph 1, § 5523, Rev. Codes 1905, in terminating the same. There was competent evidence that the plaintiff requested the defendant to furnish a proper amount of heat; that the same was not so furnished within a reasonable time. The jury having passed upon the sufficiency of such evidence, that question is settled against the defendant.
In view of the fact that the selling of heat has become an important industry under modern methods, the rights of parties growing out of contracts to furnish heat take an unusual importance. The plaintiff in this instance had no more control over the source of supply than as though the heat was to come from a central plant, blocks away, and not, as it did, from the cellar beneath the rented building. We are not dealing with a question of repairs. There is no intimation that there were neither proper pipes nor a lack of radiation. It was simply a failure on the part of defendant, who was in sole control of the heating plant, to use fuel and keep present a sufficient amount of steam to warm the rooms.
An apartment house contract was under discussion in the case of O'Gorman v. Harby, 18 Misc. 228, 41 N.Y.S. 521 where a landlord failed to supply a sufficient amount of heat. The court says: ...
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