20 § 1858. Covenant as to renewal.-For the breach of a covenant to renew a lease the measure of damages is the difference between the rental value for the term which the renewal would cover and the amount the tenant agreed to pay. And it has been decided that where the lessor breaks such covenant and exacts an increased rental, there may be a recovery of the difference between such increased rent and the amount which the lessee was to pay under the clause giving him the right to renew." But evidence is not admissible of future profits which might be made from the property, if the product thereof could be sold at a certain price. And for breach of an oral contract to renew a lease there can be no recovery for moneys expended or liabilities incurred by the lessee in respect to the property which the contract did not require or authorize him to expend or incur. Nor can tenants recover damages for refusal of a lessor to execute a renewal where they occupy the premises for the full term covered by such renewal. And tenants are declared to be absolutely without right to damages on a lease containing a stipulation of renewal where they may never avail themselves of such stipulation by reason of the fact that they have by their own acts precluded themselves from any further claim to the premises by failure to exercise any right of possession and by surrender and acquiescence on their release therefrom. So damages are not recoverable for failure to renew a lease according to an option therein where a tenant removes his stock in trade from the premises, surrenders the keys and expresses satisfaction at being released from his contract. 24 § 1859. Defects in things leased. The damages which would be estopped from recovering any rent of the premises so surrendered, and would be estopped from claiming any damages for a breach of any of the terms of said lease pertaining to the portion of said demised premises so surrendered." 20 Walcott v. McNew (Tex. Civ. App. 1901), 62 S. W. 815. 553; 37 22 Grubb v. Burford, 98 Va. S. E. 4; 2 Va. Sup. Ct. R. 467. 23 Leavitt v. Stern, 159 Ill. 526; 42 N. E. 869. 24 Hegan Mantel Co. v. Cook's 26 Jackson v. Doll, 109 La. 230; 33 21 Tracy v. Albany Exp. Co., 7 N. So. 207. Y. 472. 27 immediately result from defects in the thing leased are recoverable, but not those consequentially resulting. So though the landlord did not expressly covenant to keep a roof in repair, yet it has been decided that he will be liable for an injury to the goods of a tenant as a result of leakage, where the tenant had no control over any part of the building except the room leased. And where as the result of the overflow of a tank which did not have a ball cock attached as was customary, usual and necessary, the goods of a tenant were injured, it was held that the landlord was liable therefor. Again, where goods are injured as a result of water leaking through a defective roof, the measure of damages will be the difference between the market value of the goods immediately preceding and immediately after the injury. But it has been decided that damages by reason of the sweating and dampness of the walls of the leased premises are not recoverable from a landlord where he had no knowledge of such defect and is not by law presumed to have known of it.31 30 29 § 1860. Agreements or leases on shares.-There is a distinction between a contract to carry on a business on shares and an agreement in a lease as to shares. Thus the damages are not based upon the relation of landlord and tenant, and the value of the agreement at the time of the breach is the measure of recovery for breach of a contract, whereby the owner of a store agrees to furnish facilities for conducting business therein, in consideration of the payment of a certain per cent of the gross sales. But it has been determined that the But 27 Redon v. Coffin, 11 La. Ann. 695. | aff'g 50 N. Y. St. R. 504; 21 N. Y. See note as to liability of landlord, Supp. 307. See Crittenden v. Johnetc., 11 Am. Neg. Rep. 315. ston, 7 App. Div. (N. Y.) 258; 40 N. 28 Trower v. Wehner, 75 Ill. App. Y. Supp. 87, as to business on 655. 29 Citron v. Bayley, 36 App. Div. (N. Y.) 130; 55 N. Y. Supp. 382. 30 Brunswick Grocery Co. v. Spencer, 97 Ga. 764; 25 S. E. 764. 31 Maillet v. Roy, Rap. Jud. Quebec, 12 C. S. 375. 32 Dickinson v. Hart, 142 N. Y. 183; 58 N. Y. St. R. 645; 36 N. E. 801, shares. Hancock v. Boggus, 111 Ga. 884; 36 S. E. 970, as to relation sustained between parties operating on shares. As to paying rent by a share of the crops and destruction as to cultivating land and receiving a share of the crops, see Gifford v. Meyers, 27 Ind. App. 348; 61 N. E. 210; Horner's Rev. Stat. Ind. 1897, sec. 5224; 33 character of the agreement under which a farm is to be worked on shares is immaterial upon the question of damages, that is, whether the privilege is called a lease, or right of occupation, or some other name, the real question is as to how much such privilege is worth upon breach of the agreement. If logs are to be furnished and a price paid for their manufacture into lumber, under an agreement to operate mills for a specified time, the lease therefor is immaterial either as an allegation or as evidence upon the question of damages for breach of the contract. And where the lessor is to furnish certain stock on a farm, and to go security for other stock to be purchased by the lessee, to be paid for from milk sold, the value of the stock, above its cost at the time they would have been fully paid for under the agreement, is the measure of recovery, and not the profits from the stock. Again, one half the rent and expenditures by the lessee, in his efforts to raise crops, will be recoverable, in case of a breach of a covenant in a lease to pay one half the loss to crops occasioned by hail or drought. And where a farm is leased on shares, and the lessee is unlawfully refused possession, he may properly show, upon the question of damages, the value of the crops which could have been raised during such period and also the productive capacity of the land. So, where crops are to be harvested on shares, the damages recoverable will be the fair market value of the share to which the tenant was entitled at the time of the exclusion, nor should the expense of harvesting the lessor's share be deducted. And the value of the labor of the lessee in putting in a crop, under an agreement that the lessor should receive an equal share thereof, he having furnished the seed, may be recovered from the lessor, where he takes possession of the land, without the lessee's consent, on the ground that the crop is frozen out. So a Burn's Rev. Stat. Ind. 1894, sec. 7105. 33 Taylor v. Bradley, 39 N. Y. 129; 4 Abb. Dec. 363; 1 Alb. Law J. 265. 34 Lovejoy v. Morrison, 10 Minn. 136. 35 Chesmore v. Barker, 101 Iowa, 576; 70 N. W. 701. 39 36 Hotchkiss v. Patterson, 5 Kan. App. 358; 48 Pac. 435. 37 Loufer v. Stottlmyer, 16 Ind. App. 221; 44 N. E. 1008. 38 Foley v. Southwestern Land Co., 94 Wis. 329; 68 N. W. 994. 39 Rees v. Baker, 4 Green (Iowa), 461. tenant on shares, who has been wrongfully ejected, may recover the value of the farm to him less the rent for the unexpired term. And the fact that one, after a writ of restitution, was permitted to remain upon the premises, and was thereby enabled to more advantageously dispose of his goods, and was charged no rent for such period, will materially affect the recovery." If, however, the lessee uses teams in his private business, which had been furnished by the lessor under a lease and an agreement to till the land on shares, and the lessee is evicted from the land but is left in possession of a house thereon, he cannot recover the value of the crops, but only nominal damages. Again, where the agreement is to let a farm on shares for a term of years, with a reservation of a right to sell before the expiration of said period, possession to be surrendered at the end of the current farm year, and damages to be paid in case of sale, the amount of compensation will be the value of the term surrendered, based upon profits dependent upon the yielding capacity of the farm under the contract. But remote or conjectural damages cannot be recovered under an agreement to suffer one half the damages to crops sustained by hail and drought." While the damages, however, should not be so uncertain and speculative as to preclude a recovery, they are not of such a character, where the term of the lease is not specified, but is claimed as for one year, under an agreement to cultivate on equal shares of the returns, in consideration that defendant pay plaintiff's monthly rent and furnish implements, seed, etc., and in such case, where plaintiff was dispossessed, he can recover the agreed monthly rent for the unexpired term, together with one half the reasonable market value of the crop which he would have raised, less his reasonable earnings, or what he might have earned by the requisite diligence, during said unexpired term, in another business. But it is also decided that the value of the crops, less the tenant's earnings during the time he would have had 45 40 Wright v. Everett (Iowa), 55 N. W. 4. 41 Baker v. Anglim, 74 Minn. 246; 77 N. W. 45. 42 Olmstead v. Burk, 25 Ill. 86. 43 Depew v. Ketchem, 75 Hun, 227; 58 N. Y. St. R. 668. 44 Hotchkiss v. Patterson, 5 Kan. App. 358; 48 Pac. 435. 45 Brincefield v. Allen (Tex. Civ. App. 1901), 60 S. W. 1010. to stay on the farm, if the contract had been kept, cannot be recovered for breach of an agreement to lease a farm on equal shares, the lessee to furnish certain work and materials. Again, there may be a recovery of damages to the extent of the injury sustained by the lands lying idle and becoming overgrown with weeds, and to this may be added the value of the lessor's share of the crop, had one been raised, where there is a breach of an agreement by the lessee to raise certain crops on another's land." § 1861. Contract by lessor to furnish seed.-Where the lessor contracts to furnish the lessee with a certain quality of seed, he will be liable for a breach of the contract by furnishing seed of a defective quality, for the difference between the value of the crop raised and that of the crop which would have been raised if the seed had been of the quality which he agreed to furnish.48 § 1862. Right of tenant to remove mantels, etc.—Where by the terms of a lease a tenant has the right to remove mantels and grates from the demised premises, on condition that any injury which may be done by such removal shall be made good by him, he may recover the value of such mantels and grates as they stand in the building where he is prevented by the lessor from removing them.49 46 Ecker v. Cottrell, 20 App. Div. | grates, provided he made good the (N. Y.) 496; 48 N. Y. Supp. 1031. 48 Hoopes v. East, 19 Tex. Civ. App. 531; 48 S. W. 764. See Flick v. Wetherbee, 20 Wis. 392. 40 Bruce v. Welch, 52 Hun (N. Y.), 524; 5 N. Y. Supp. 668. The court per Bartlett, J., said: "I think the defendant was entitled to a broader measure of damages than was sanctioned by the trial judge in his rulings upon the evidence sought to be introduced to sustain the counterclaim. Under the covenant in the lease the defendant was to be allowed to remove the marble mantels and injury which might be done by such removal; and by way of counterclaim against the demand of the plaintiffs for the rent of the premises he averred that when he wished and attempted to remove the mantels and grates, both before and also immediately after the expiration of the lease, his landlords prevented him from so doing, and have continued to keep such mantels and grates and use them. . . . In proving his damages by reason of the unlawful detention of the mantels and grates, the defendant was limited to evidence of their value after being taken out of the hotel property, and removed there |