Costinett v. Plaza Hotel Co.

41 App. D.C. 80, 1913 U.S. App. LEXIS 1977

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 3, 1913
• Docket: No. 2522
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Courts

1. It is conceded that the issue as to the preparation of plans and specifications for the new building, and the agreement thereto by defendants without the condition for additional rental, as claimed by them, has been settled by the verdict. Those issues were submitted to the jury fairly upon the instructions asked by both plaintiff and defendants, and the verdict upon a conflict of evidence relating thereto is conclusive.

2. There was no error in refusing the second instruction proposed by the defendants, to the effect that the plaintiff is not entitled to recover more than nominal damages for the breach of-the covenant. The rent reserved in the contract was not determinable of the actual value; it could be no more than an element in the proof. If it was less than the reasonable actual value of the use of the premises, plaintiff was entitled to the advantage of his contract. The charge embodied this principle. It instructed the jury that the measure of actual damage was the difference between the reasonable rental value of the premises and the valué reserved in the lease, if the former had been shown by the evidence to be greater than the latter.

3. There was no error in permitting the witnesses Costello and others, to testify as to the reasonable rental value of the building, had the same been erected as agreed upon.

The majority of them were real estate brokers, more or less familiar with land and building values in that vicinity. One was-a keeper of a small hotel and barroom within three squares of the premises; others had opportunities to know the rental values of similar premises. The values of land and its use and occupation are ordinarily, difficult :of certain ascertainment, and rest on the opinions of witnesses who may have had reasonable opportunity for'their formation.

To- say, as 'contended, that -the testimony was incompetent because “none of the witnesses had been agent for a hotel in the vicinity of this locality, for it was barren of hotels,” would be to; permit the- violations-of such contracts with impunity. The testimony was competent, and it was for the jury to deter-, mine the credibility of the witnesses and the weight of the evidence of each, and to. assess-the damages. ■

■ 4. The charge; of the court; it, will be remembered, directed; the jury; that the- measure ,:of damages was the difference be-, tween the rent reserved in the contract, and the reasonable value of the use and occupation of the premises for the remaining term of the lease. At the request of the defendants, the court chax*ged the jury that, in considering such valxxe, they should reject áll the tcstimoxxy tending to prove that the business to be carried on woixld be profitable. The witnesses were limited in their direct examination to the reasonable rental valxxe of the premises, and the question of probable loss of profits by the breach of the contract was not gone into. Ixx cross-examixxing the witnesses, the defendants broxxght out the fact that, in considering the rental value, they took into consideration the business that oxxght to be done ixx sxxch premises, and the fact that it ought to be a profitable one xxnder coxnpetent management. Only one was re-examined, axxd he said that, “independently of what profits could be made out of it, who would rent it, etc., there ought to be xxo diffieixlty in rexiting it in the market for $6,500 or $7,000 per year.”

Moreover, defendants’ testimony showed that their x’efusal to erect the building was becaxxse plaintiff refused to accede to their demand for axx increased rental of $600 per month for the first year, and an increased amount per month during each subsequent year.

Giving a reasonable time for the construction of the building after agreement upon the plans, there would remain about six years of the lease. Under the coxxtraet plaintiff would have boexx required to pay $3,600 per year for that period. The defendants had dexnanded $7,200 per year as a conditioxx of building. The average rental valxxe estimated by plaintiff’s witxxesses was about $6,500 per year; the lowest estimate being $4,800. This was submitted to the jury, who, in weighing it, were expressly charged to exclude all evidence tending to prove that the bxxsiness would be profitable. The stipulated rental was $3,600; the jxxry found its actual rental valxxe to be in accord with the lowest estimate of plaintiff’s witnesses, namely, $4,800.

There is no foundation for defendants’ assignments of error. For the reasons given the judgment is affirmed with costs.

Affirmed.