The Portland daily press., 1899-08-24
FROM THE LAW COURT.
Decision in a Knox County cas'

Decisfon tn Knox county tnses
. The following rescript was received yes-
terday:
Knox es
Jonathan s. wiilouehby VS.. Atkinson
Furnishing company. Rescript.
Wiswell, J-Courts are liberal In the
allowance OF amendments and by the
statute. X 3, Q. 80, scot. 10. mere defects
In form and oircums.antial errors and
mistakes may be amended. But this
statute does not permit of an amendment
which will add new or different cause
OF action, and this court has In numer-
Gus cases held that such amendments are
not allowable.
Held; that as the amendment offered
in tnis case would introduce new and
additional causes Of action, they cannot
be allowed.
!. The lease to the defendant for n term
with the privilege, at the end OF said
term, OF releasing for a term OF ten years
or any pars thereof at the same yearly
rental Upon the last day of the origi-
nal term the tenant gave to the landlord
the following written notice: .'In ac-
cordance with the option contained in
our lease of the wiiloughby block, we de-
sire to notify you that we will release
the said block for the space of three
months from the expiration of the lease"
Held; that the clause quoted from the
lease should be construed as a present
demise to take effect in the future at the
option Of the lesses and that the notice
given by the tenant to the landlord, ao-
oonlpanied by q continuation of posses
sion, was sufficient, without other not, to
continue the tenancy under the lsaEe Z, I
the period named in the aotice.
The tenancy under the Ieass having ter
minated on December l. 1885, upon viii b
day the defendant company vacated the
premises and rendered the keys TO The
| plaintiff, the defendant 10 not liable for
any rent subsequent to that delay.
A lease contained the usual covenant
upon the rart of the lessee to quit and
deliver up the premises to ths lessor at
| the expiration of the term, sin as good
order and condition, reasonable So and
wearing thereof, or inevitable accident,
excepted, as the same are or may be put
into by the said lessor, and net make or
suffer any waste thereof" 1t also con-
| tanned this provision, with the privilege
| of removing whatever partition said COM
pany may desire to remove during their
| term of occupancy, provided said compa-
ny replace said partition in as good condi.
| tion as they find them.
| The property leased was brick build
| ing Of three stories and Hn attic. When
the lessse took possession, 1t consisted of
/ two stores upon the ground floor, nf1 ces
on the second floor and hall with ants
rooms upon the third and attic floors.
| For the purpose of using the whole
| building as one store, the lessee took
| down partitions, changed the locations of
| the stairways and made numerous other
alterations.
| In this action to recover damages.
among other things, for the DEFENDANT s
failure TO comply with the terms of its
covenant 10 restore the building to the
same condition as when rented, held, that
| the measure OF damages is the ccss Of do
ing what the defendant oovenanted to do,
| but did not do, the &C st of replacing the
| partitions and restoring the building to
| the eame condition, so fer as these volun-
tary alterations are concerned, as 1t was
| in when lensed.
| The court does not deciGe whether the
plaintiff would have been entitled, II he
had sued for it, to have included In his
damages recoverable reasonable sum
for the loss of the use of the premises
| during the time necessary TO restore the
| building to Its former condition, because
this claim Is not speoifledin the account
which the statute requires to be annexed
to the writ.
The plaintiff also seeks to recover in
this action the expense Incurred by. him
In placing an elevator in the building
and in removing the same, but the cas-,
does not disclose any contract or othel
liability upon the part of the defendan
to reimburse the plaintiff for suoh ex
pense.
Case remanded TO the court at mis-
prius Tor the asss ssment of damages IL
accordance with the opinion.