tenant's failure to make improvements, the measure of damages was held, in Raybourn v. Ramsdell, (*) to be the reasonable cost of making the improvements, and the difference in rental value between the improved and unimproved land from the time of the expiration of the lease until the improvement could be made. But in Prescott v. Otterstatter () it was held that the tenant could recover against the landlord, on a covenant to make improvements, only the difference between the value of the premises, improved and unimproved. In Chamberlain v. Parker, () the plaintiffs leased to the defendant a lot in the Pennsylvania oil region, reserving no rent, and stating no term, but the defendant covenanted in the lease to sink a well on the premises by the first of July following. There was a right of re-entry reserved to the lessors on the breach of the lessee's covenants. In an action for damages brought by the lessors for breach. of the above covenant, they were held entitled to a nominal recovery only, the damages being entirely conjectural. On breach of covenant by a lessor to dig ditches in the land, the measure of damages is the difference in the annual value of the land with and without ditches.(*) § 994. Covenant to rebuild.-* In an action on a covenant to rebuild contained in a lease, the defendants were assignees, and the plaintiff's wife tenant for life. The plaintiff contended that, as tenant for life, she was entitled to recover general damages-in other words, the whole amount of damages sustained by the breach, and was not to be restricted to a compensation measured by the ex (*) 78 Ill. 622. () 45 N. Y. 569. (d) M'Ewen v. Dillon, 12 Ont. 411. tent of her particular estate. But Gibbs, C. J., at Nisi Prius, held otherwise, and that the tenant, in tail or in fee, might have an action on the covenant and recover for the injury done to his reversionary interest.1 ** $995. Covenant to insure.-* In England it has been held by Lord Ellenborough, at Nisi Prius, that where a lease contains a covenant to repair the premises, and also to insure them for a specific amount against fire, the sum fixed in the latter covenant does not regulate the damages under the former.*** The measure of damages is the value of the building lost, not exceeding the agreed amount of insurance; and this was not altered by the fact that the lease gave the lessor a right, on the lessee's default, to insure at the lessee's expense. (") $996. Covenant to renew.-When the covenant is broken by the lessor's exacting an increased rent in a new lease, the measure is the difference between what the lessee was to have paid for the rent for the term, and what he was compelled to pay.() And in an action for breach of this covenant against the personal representatives of a lessor holding under the College of Dublin, where the covenantor had been evicted by title paramount, the jury, in determining the value of the lease, were allowed to consider the evidence of a witness as to such value founded on the risk, on one side, that the college might not renew, and the chance, on the other, that they would. In the same case, although the plaintiffs gave no evidence of any eviction from the possession of the lands in question by the lessor or any person under him, the refusal of the 1 Evelyn v. Raddish, 1 Holt 543. This case was reconsidered in 7 Taunt. 411, but on another point. Digby v. Atkinson, 4 Camp. 275. (*) Douglass v. Murphy, 16 Up. Can. Q. B. 113. judge to direct the jury to find nominal damages only, was sustained. (^) Where one bought of a tenant an unexpired lease, on the agreement of the landlord to renew it at the expiration of the term, and they both refused to so renew, and the landlord died before the end of the term, it was held that the measure of damages in a suit against the landlord's administrator was the price paid and interest, and not the value of the contract. (') Where the covenant was to renew at a rent to be fixed by arbitration, and the lessee erected buildings on the land, but the renewal was prevented by failure of title in the landlord, the measure of damages was held to be the difference between the value of the lease and the probable ground rent. (c) 997. Covenant to give up possession. In an action upon a guaranty that a lessee should perform his covenant to surrender the premises at the end of the lease, the rent stipulated in the lease furnishes presumptively the measure of damages, to be computed by reference to the time during which the plaintiff is kept out of possession. (4) But the rent fixed in the lease is not conclusive; the lessor may recover the fair rental value. (*) So in Henderson v. Squire, (') where a tenant failed to comply with an agreement to deliver up possession at the date agreed upon, an under-tenant being in possession, the landlord was allowed to recover the value of the premises for the time he was kept out of them, and the cost of dispossessing the under-tenant. (*) Strong v. Kean, 10 Ir. L. R. 137. () McClowry v. Croghan, 31 Pa. 22. () Van Brocklin v. Brantford, 20 Up. Can. Q. B. 347. (d) Otto v. Jackson, 35 Ill. 349; compare McKinney v. Peck, 28 Ill. 174; Prickett v. Ritter, 16 Ill. 96. (*) Keegan v. Kinnare, 123 Ill. 280. (') L. R. 4 Q. B. 170. § 998. Covenant to allow removal of buildings, fixtures, etc.-In an action on a covenant to permit the tenant to remove mantels and grates at the end of the term, the measure of damages is the value of the mantels and grates in place. (*) So in an action by the tenant for the landlord's refusal to allow him to remove a building the measure of damages is the value of the building on the land.(©) But in a similar action by one who bought at a mechanic's lien sale, for the purpose of removal, for refusal to allow plaintiff to remove the building purchased, the plaintiff was allowed only the value the building would have if removed, not its value as it stood on the land; (c) the court saying, "The plaintiff has no right to measure his damages by the defendant's benefit. $999. Other covenants in leases.-* In New York,' it is held that where it is covenanted between the lessor and the lessee, that at the expiration of the term, the buildings and improvements on the demised premises are to be valued by persons to be chosen by the parties, which valuation the lessor is to pay the lessee; if, on the expiration of the term, the lessor refuses to agree on the appraisers, and the lessee appoints them, and has the buildings appraised, the valuation thus made, being ex parte, is not conclusive as to the amount of damages, but that they are to be ascertained by the jury.** In an action on I Holliday v. Marshall, 7 Johns. 211. (*) Bruce v. Welch, 52 Hun 524. The court gave as a reason for the decision the equitable principle that the defendant should not be allowed to profit by his wrong, as would happen if the plaintiff recovered only the value of the fixtures after severance. It would seem that the plaintiff's actual loss was the value before severance, since he could sell them at that valuation to the landlord or to an incoming tenant. (*) Neiswanger v. Squier, 73 Mo. 192. The form of action was not covenant, but trover. (†) Seibel v. Sieman, 72 Mo. 526. a covenant to heat the leased premises the measure of damages is the difference in value of the premises heated as stipulated in the lease, and the value as they were in fact heated; not, however, exceeding the reasonable cost of supplying the heat. (*) In an action on the covenant not to assign or under-let, the measure of damages is the loss caused to the landlord by having a tenant of less ability than the defendant to pay the rent.(") $1000. Costs as between lessee and sub-lessee.-*A question has arisen on covenants in leases, as between lessee and sub-lessee, which goes to illustrate the general subject which we are now considering. Elizabeth Coppock demised certain premises to the plaintiff with covenant to repair by lessee; the plaintiff demised the premises to one Finch, for a portion of his own term, with covenant to repair and leave in repair, by lessee. Finch assigned to the defendant, who broke the covenant, by leaving them out of repair at the end of the term. By reason of this, the plaintiff was obliged to pay Elizabeth Coppock, the chief lessor, 10 damages, and £100 costs of both sides in the suit brought on the covenant. On the question whether the costs were recoverable by the lessee, against the sub-lessee, the Court of King's Bench held they were, saying: "If the plaintiff could not recover those damages and costs against the defendant, he would be without redress for an injury sustained through the neglect of the defendant, and not in consequence of his own default." Here it will be seen that there was no covenant to indemnify by the sub-lessee; and on this ground the 1 Neale 7. Wyllie, 3 B. & C. 533. (*) McCormick v. Stowell, 138 Mass. 431. |