The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1880-12-11


| WORKS C0MPANY-AN INTERESTING
CASE NEUTRALITY-SUSPICIOUS. OF THE
! COURT. &C.
The following Is the full text OF the opin.
Ion delivered Dv ibe Supreme Court OF Ap-
pea!s yesterday In the case Of Alfred Moses
rs. the Old Dominion from and Nail-Works
| Company:
This Is an action of trespass on the case
broughtin the Circuit Court Of Richmond
I by Alfred Moses against the "Old Domin-
| ion Iron and Nall-Works Company"
| The history OF the controversy, briefly
stated, is as follows: 1n December, 1915,
The plaintiff leased to the defendants a
warehouse in the city of Richmond for she
term Of three years, commencing the 1st of
January, 1876. at the rent OF five thousand
and four hundred dollars. IL was one Of the
| provisions OF the lease that If the building
should be so damaged 10y fire or other cause
rs to render II untenantahle the lease should
be void. The defendants, on their part,
c0yenanted that they would leave The premi-
ses In good repair, ordinary wear and fear
excepted.
The defendants took possession OF the
premises on the 1st OF January, 1876, and
! proceeded to store therein iron and nails III
| large quantities. On the 39ih March, 1876,
the western portion OF the building, IN
cludIng the floors and the roofs. fell down,
carry ing several bundred tons OF iron. The
walls, however, with the exception OF q
small portion, remaining intact. SjoltIy
after the occurrence the plaintiff proposed
! 10 the defendants 10 submit TO arbitration
the question of their liability for the dam.
! age TO the building; and he further pro-
posed in the mean time to 90 on and put
the premises In complete repair, that IS lit
tie delay and loss as possible might be occa-
stoned in the use Of the premises. The
defendants decliRed the proposition to
arbitrate, denx NJ they were i'm any manner
responsible for the damage to the property.
but thev made no objection TO the plan OF
repairing the premises suggested by PLAIN
| tiff. The latter thereupon proceeded at
once to put the building in suitable cOndi-
tien at an expense OF S2,664, the defendants
employing the architect to ADVISE with re-
spect to the plan OF The work. The plain
tiff, however, protested throughout that be
did not mean 10 waive his rigbt of recourse
against the defendants for compensation for
| the damage be had sustained. Upon the
completion OF the work the defendants re-
sumed possession OF the premises, paying
| therefor the agreed rent except as 10 the
two months during which the bulldog
was undergoing the repairs.
| In September, 1876, the plaintiff insti-
| tutpd This suit TO recover damages sustained
| by him arising from the injury 10 the build
ing. Upon the trial in the court below he
| introduced testimony tending TO show that
| the injury resulted from the misconduct
OF the defendants in overlooking the build
To-. oil. ,fo Eafn nttv 10
was due 10 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 warehouse il
properly planned and constructed, and that
its fall wG9 attributable not TO overlooking,
| but to defective construction.
| The evidence being concluded, the plain
tiff asked for the following instructions:
| "The jury are instructed that nOtwth-
standing the clause i'm the lease providing
that the lease should be void on the build
ing becoming so damaged bv fire or other
accident as TO render lpage 25l it untenant
able, such avoidance could not follow at the
option of the tenant il the fire or other ac
cdent was caused by the negligence OF mis-
lfeasance OF the said tenant"
| Which instructions the Court refused to
give, and the plaintiff excepted. The hrs
point to be considered Is whether this ruling
Of the Court is correct.
1t will be perceived the only proposition
affirmed by the instructions is that the de-
PENDANTS could not at their option avoid the
lease if fle accident 20 the building wa
occasiOned by their negligence, notwith
standing there was provision III the lease,
1t should be void ii the building became e
damaged as to become unttnantabe. II i
difficult to see what the plaintiff expected L
gain by affirming the validity or the contin
uance Of the lease. The action was not for III
rent, but for the recovery Of damages occa
stoned bv the ALLEGED misconduct OF the de
PENDANTS in overlooking the building.
The right OF the plaintiff to maintain hi
action and recover damages could not b
at all affected by the continuance or discon
tiuuanoe OF the lease, and II the Circnt
Court had given the instruction 1t woult
not have aided The jury in deciding th'
question submitted to them. However cor
rect, therefore, the instruction may be a
an abstract proposition OF law, it bad NJ
releyauce. TO the issue involved, and tn
Circuit Court committed no error IN re
l,usjpg it. And if The learned Judge ba,
stopped there, the plaintiff could have hat
no lust ground OF complaint; bn
1.-The Court went further, and OF its owl
accord gave the following instruction:
"If the Jury shall believe from the eyi
dence that tie plaintiff, after the accident
with full knowledge OF all the clrcun
lstauces, entered upon the premises, and
with the consent of the defendants, bu
with their disclaimer at the time and at al
times thereafter Of any responsibility 10
the accident, employed at his own expens
Iagenls and workmen to repair the damage
to the building and to put II In such condl
ton as would prevent the defendants iron
claiming any right to aoaDdoB the premises
and TO declare the lease determined, al
though before commencing tue Wor'
and [page 26] throughout It's progres
he protested to the defendants that D.
was under no legal obligation to make sue
repairs, aud reserved the rent 10 ciall
compensation therefor from the deIendanis
and the iury shall further believe that nfte
line completion of the work by the plaintiff
the defendants accepted the building, an
the relation OF landlord and tenant unde
the original lease has by mutual consen
ever since subsisted, the jury are instructe
that the plaintiff cannot, Ia this action. rt
cover from the defendants any portion 0
the EXPENSE incurred by him in maxim
such repairs"
II will be observed that the instructio
does not affirm that the plaintiff Is withou
remedy for the supposed Injury, but lha
mon the clse as stated by the learne
Judge he is not entitled TO recover in th
nresent form of action. The counsel 10
the defendants in his argument here insls
} ed thai il the plaintiff has any remedy
all it is by action on the covenant and nc
in case. This proposition Is not susiaine
by the authorities. Wherever The inlur
|, cnm1niffed hy the tenant Is OF