the stock of the Mariposa Land & Mining Company of New York, and, about 8 years before, he exchanged that stock for the stock of the California company; and so, at the time of the trial of this action, he had not, for nearly 20 years, been a holder of any trust certificates, and during all that time he had been a stockholder in one or the other of the two corporations, enjoying whatever advantages that position gave him. He has never surrendered his stock nor demanded the return of his certificates, and he has never rescinded in any legal way the transactions by which his trust certificates were transmuted into stock. He did not offer in his complaint to surrender or give up his stock, and did not even there ask for any rescission of the exchanges mentioned. Even if he was not bound to rescind the transactions claimed to be affected with fraud, and to offer to surrender his stock and demand to be reinstated in his position as a certificate holder before the commencement of this action, or even in his complaint, he was at least bound to do these things at the trial, and there he utterly failed to do them. There he stood upon the allegations contained in his complaint, and the complaint, as we must now assume, was dismissed upon all the grounds which could be made against it.. It is said that the judgment in the foreclosure action can form no bar to the maintenance of this action because Kelly was not a party to that action. But he was a party thereto in interest, and Donohoe stood in that action for both himself and Kelly. That action was prosecuted for Kelly's benefit, and therefore he was bound by, and also has the benefit of, any adjudication made therein. We are therefore of opinion that the complaint was properly dismissed, and that the judgment should be affirmed, with costs. All concur, except ANDREWS, C. J., and GRAY, J., not voting. Judgment affirmed. UNITED STATES TRUST CO. OF NEW 1. The measure of damages for breach of covenants on the part of a lessee to allow the lessor to put up the usual notice of "To let" on the building before the expiration of the lease, and also to permit the premises to be shown to persons proposing to rent, is the rental value of the building during the time it remained vacant on account of the lessee's act. 2. The fact that the lessor can compel the lessee to fulfill such covenants by injunction does not deprive him of his remedy at law for their violation. Appeal from superior court of New York city, general term. Action by the United States Trust Company of New York, as trustee, against Miles M. O'Brien. From a judgment of the gen eral term affirming a judgment for plaintiff for nominal damages merely, he appeals. Reversed. Edward W. Sheldon, for appellant. Peter A. Hendrick, for respondent. PECKHAM, J. The plaintiff commenced this action to recover damages for the breach of certain covenants contained in a lease of premises situated in the city of New York to the defendant for a dwelling house. After the evidence was all in, the court directed a verdict for the plaintiff for six cents damages only; and, the judgment entered thereon having been affirmed by the general term of the New York superior court, the plaintiff has appealed here, and it now maintains that the question of the amount of damages arising from the breach of the covenant should have been submitted to the jury. The plaintiff is the substituted trustee under the will of William H. Belden, deceased. Its predecessor executed the lease to the defendant for a term of three years, expiring on the 1st of May, 1889. The lease contained a covenant against subletting or assigning on the part of the lessee, and also a covenant on his part that at reasonable hours in the daytime he would permit the lessor or his agent to show the premises to such persons as he desired for the purpose of selling or leasing the same, and that he would permit the usual notice of "To let" to be posted on the premises, and to remain there without molestation. In November, 1888, the defendant vacated the premises, and sublet them to a third party for a portion of the term remaining. This person, being in possession, refused to permit the posting of any notice, and refused entrance to any one for the purpose of looking at the house with a view of purchasing or leasing the same. The house remained unoccupied, and without being leased or sold, until February 1, 1890, when it was leased for $900 a year. Evidence was given that the rental value was in May, 1889, $1,000 a year. When the house was vacated, it was not in a habitable condition, and repairs were made on it, which consumed two or three weeks. In order to secure tenants, and as soon as the lease expired, bills were put up, and the house was continually offered for rent, without success, until February following. The plaintiff then brought this action to recover damages for the breach of the covenants not to sublet, and to permit the placing of the notice on the house, and to allow the premises to be shown for the purpose of selling or leasing the same. The plaintiff recovered a verdict on the first trial, which was set aside upon appeal by the general term, and upon the second trial the court directed the verdict of six cents as stated. The plaintiff now urges that the direct result of the violation of these covenants was the failure to rent the house from May 1, 1889, until February 1, 1800, and that damages might have been awarded to it by the jury on the evidence for that time at the rate of $1,000 per year. The courts below have held as matter of law that the failure to rent could not upon the evidence be regarded as the natural or necessary consequence of the breach of his covenants by the defendant, and hence directed a verdict for nominal damages only. It is clear, and so it has been held in many cases, that the rule of damages should not depend upon the form of the action. In all civil actions the law gives, or endeavors to give, a just indemnity for the wrong which has been done the plaintiff, and whether the act was of the kind designated as a "tort," or one consisting of a breach of a contract, is on the question of damages an irrelevant inquiry. As was said by Rapallo, J., in Baker v. Drake, 53 N. Y. 211, 220, the inquiry is, what is an adequate indemnity to the party injured? and the answer cannot be affected by the form of the action in which he seeks his remedy. In special cases where punitive or exemplary damages are allowed, an exception exists to the general rule of indemnity. Swain v. Schieffelin, 134 N. Y. 471, 474, 31 N. E. 1025. It is a mistake, therefore, to say that liability for breach of covenant is less extensive than for that of tort, if cases of tort be excluded in which punitive damages are allowed. In an action for a breach of contract, the damages recoverable are those which the parties may fairly be supposed when they made the contract to have contemplated as naturally following its violation. Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209, 217, 31 N. E. 1018. Speculative, contingent, and remote damages are excluded. The courts below have agreed that this is the true rule of damages, and, in applying the rule to this case, have held that the proof of damage and the cause thereof were too uncertain and speculative to authorize a recovery for any other than nominal damages; that there was no solid or substantial basis for the jury to find the fact that the refusal to perform the covenant was the cause of the loss of rent. In using the words "uncertain, speculative, and contingent," for the purpose of excluding that kind of damage, it is not meant to assert that the loss sustained must be proved with certainty of a mathematical demonstration to have been the necessary result of the breach of covenant by defendant. The plaintiff is not bound to show to a certainty that excludes the possibility of doubt that the loss to him resulted from the action of the defendant in violating his agreement. In many cases such proof cannot be given; and yet there might be a reasonable certainty, founded upon inferences legitimately and properly deducible from the evidence, that the plaintiff's loss was not only in fact occasioned by the defendant's violation of his covenant, but that such loss was the natural and proximate result of such violation. Cer tainty to reasonable intent is necessary, and the meaning of that language is that the loss or damage must be so far removed from speculation or doubt as to create in the minds of intelligent and reasonable men the belief that it was most likely to follow from the breach of the contract, and was a probable and direct result thereof. Such a result would be regarded as having been within the contemplation of the parties, and as being the natural accompaniment and the proximate result of the violation of the contract. Regarding the purpose for which these covenants in the lease were inserted, it is obvious that two of them could only have been placed there to facilitate and aid the lessor in his efforts to obtain another tenant at the expiration of the lease with the least possible delay. Continuous occupation of premises is necessary in order that continuous rent may issue therefrom. In order to secure the renting thereof, the custom has become substantially universal to place on the house itself a notice that it is "To let," and the showing of the house itself to wouldbe tenants is a necessity which evidence is not requisite to prove. In order to secure these privileges, a landlord inserts the covenants in the lease. Can there be any doubt that parties, when inserting in a lease such covenants, contemplate the amount of rent which may be lost through the inexcusable refusal to fulfill them as a proper measure of damages? It would seem as if it were not only the most natural rule, but that none other could in truth have been in the minds of the parties. The proof may sometimes be rather difficult upon the question whether the damage was the just or proximate result of the breach of the covenant. In such case it does not come with very good grace from the defendant to insist upon the most specific and certain proof as to the cause and amount of the damage when he has himself been guilty of a most inexcusable violation of the covenants which were inserted for the very purpose of preventing the result which has come about. Wakeman v. Manufacturing Co., 101 N. Y. 205, 4 N. E. 264. Reasonable certainty is sufficient. The inference that the result followed because of the prior violation of the contract is sometimes a legitimate one, and founded upon the evidence in the case. Looking at the object for which such covenants are inserted and the substantially universal custom adopted for the purpose of renting premises, and it would seem plain enough that the natural and obvious consequence of a breach might be the failure to rent. I do not say "must" be the failure to rent, because it is equally plain there would be a possibility of renting notwithstanding the breach of such covenants; and, if the renting were accomplished, there might be no damage sustained because of the breach. In a case, however, where there is a failure to rent, is the cause of such failure necessarily and in all in stances so uncertain as to prevent any recovery of damages? I think not. To hold otherwise is to deprive the covenants of most of their value. If no damages are recoverable for their breach, the plaintiff obtains very little security by reason of their insertion in the lease, and the defendant runs very little, if any, risk from their violation. Mere preventive remedies might be wholly inadequate. If the remedy for such a violation is confined to the preventive one by injunction, much of the force and efficacy of these covenants will be taken away. For a short time prior to the 1st of May in any year, in the cities of this state, the season for renting houses exists. If during this season the lessor is engaged in litigation over the alleged breach of these covenants by the lessee, it is easy to see how ineffectual the remedy by injunction might be. The season for renting is short, at best. The plaintiff's allegations might be denied, and, though finally successful, the time spent even in a successful contest might use up the whole season. Various colorable compliances with the terms of the covenants might be practiced by the lessee, and, if only prolonged a sufficient time, the lease would terminate and the season end at the same period; and, though it should finally be determined that the covenants had not in fact been complied with, it would be too late for redress to the plaintiff by any form of injunction or of equitable relief; and, as the rule at law would in such case be to give but nominal damages, the plaintiff would be substantially without remedy, and the defendant would escape the proper consequences of his inexIcusable refusal to fulfill his obligations. If, however, it be assumed that the plaintiff had an adequate remedy in equity and by injunction, that fact is no answer to his claim for the recovery of damages in an action based upon a violation of the covenants. That a party has an adequate remedy at law has been known to be a good answer to his prayer for relief in equity; but, in an action at law to recover damages for a violation of his covenant by the defendant, it is no answer to set up that at one time the plaintiff had a remedy in equity which he did not avail himself of to prevent the violation of such covenant by defendant. The learned court below seems to have assumed there was an inadequate remedy at law, because of the impossibility of proving that the plaintiff suffered damage, and the amount thereof, by reason of the breach of the covenants by defendant, and hence equity provided a full and adequate remedy by injunction. We do not think there is any such impossibility of proof, or that there exists a perfectly adequate remedy in equity. To say that there may be cases where the damages recoverable for a breach of this class of covenants are not nominal only, but may be definite, certain, and direct as the result of the breach, we do not mean to say that in all cases of such breach, followed by a failure to rent, the defendant would be liable for the amount of rent lost. The failure to rent might have no connection with the violation of the covenants. It might be so plainly the effect of some other and more potent cause that it would be the duty of the court to direct a verdict for the defendant upon such an issue. In other cases the question might be one for a jury to decide, under proper instructions from the court. The question as to what was the direct, immediate, proximate cause of damage is not always simply one of law. In the case at bar we think the plaintiff proved enough to require the submission to the jury of the question whether the failure to rent was the direct result of defendant's violation of his covenants, and, if so, what amount of damage the plaintiff sustained by reason of such breach of defendant. There was some dispute as to the rental value of the premises upon the trial, and as to the length of time, if at all, that the premises stood idle by reason of the acts of defendant, and these were questions which the jury should have been permitted to pass upon. They were not of so wholly uncertain, vague, or speculative a character as to preclude their submission to a jury. The plaintiff gave evidence tending to prove the violation of the covenants by defendant (indeed, such violation is substantially conceded), and that directly in consequence of such violation the plaintiff suffered some loss of rent. The evidence on the part of the defendant was sufficient to raise a question of fact for the jury upon the issue whether defendant caused the damage, and, if so, in what amount. The jury should have been permitted to decide the question. For these reasons, we think the judgments of the courts below should be reversed, and a new trial granted, with costs to abide the event. All concur, except ANDREWS, C. J., not sitting. Judgments reversed. CRONIN v. CROOKS. (Court of Appeals of New York. Oct. 16, 1894.) ATTACHMENT-Alternative STATEMENT OF GROUNDS. A warrant of attachment which recites two grounds disjunctively does not recite the "ground of attachment" (Code Civ. Proc. § 641), since to state in the alternative is to state neither fact. 27 N. Y. Supp. 822, affirmed. Appeal from supreme court, general term, third department. Action by John S. Cronin against Johanna C. Crooks. From a judgment of the general term affirming an order vacating a warrant of attachment, and directing a delivery of the attached property to a person not a party to the action, plaintiff appeals. J. K. Long, for appellant. for respondent. Affirmed. Frank S. Black, GRAY, J. The warrant of attachment which was granted in this action was based upon an affidavit which set forth a certain disposition made by the defendant of her property, which deponent alleged to have been fraudulent, and whereby she had assigned and disposed of her property with intent to defraud her creditors, and to hinder, etc., the plaintif in the collection of his demand against her. Without considering the sufficiency of the affidavit, we think it very The clear that the warrant was defective. warrant recited that the defendant "has assigned and disposed of, or is about to assign or dispose of, her property." The provisions of section 641 of the Code of Civil Procedure were not complied with. They provide, among other things, that the warrant "must briefly recite the ground of the attachment." This warrant stated no ground, for to state in the alternative is to state neither the one nor the other fact. Such an alternative statement of grounds results in a mutual exclusion. The general term of the first and fifth departments have construed the section of the Code in the same way as has the general term below (Johnson v. Buckel, 65 Hun, 601, 20 N. Y. Supp. 566; Hale v. Prote, 75 Hun, 13, 26 N. Y. Supp. 950; Dintruff v. Tuthill [Sup.] 17 N. Y. Supp. 556); and we think the construction which has been thus generally given is right. Our review of this order is justified by the insertion in it of the grounds for the affirmance. A question of law only was raised, as to the power of the court to grant such a warrant. The order should be affirmed, with costs. All concur. Order affirmed. 1. Undisputed facts on which there is no finding may be considered for the purpose of upholding a judgment. 2. One who claims an interest in land under an assignment of a contract of sale must show that he or his assignors have been ready and able to perform their part of the contract. 3. One who, in defense to an action of ejectment, set up an equitable title to the land under an assignment of a contract of sale, cannot complain that the referee failed to find that he was entitled to a conveyance on performing his part of the contract, where he asked for no such relief, and did not place himself in a position to be entitled to it. 4. One who, in defense to an action of ejectment, alleges that, under a contract of sale, he is entitled to a deed of the land, must show that an action by him for specific performance of the contract would result in his obtaining a deed. Appeal from supreme court, general term, fifth department. Action of ejectment by Electa A. Dyke against William Spargur and others. From a judgment of the general term (22 N. Y. Supp. 1124) affirming a judgment in favor of plaintiff, defendants appeal. Affirmed. William Spargur, for appellants. Charles H. Brown. for respondent. In EARL, J. This action was commenced in August, 1881, to recover 37 acres of land situated in Allegany county. It has been twice tried before referees, the trials resulting each time in a judgment for the plaintiff, and the last judgment has been unanimously affirmed by the general term. April, 1852, Thadeus Sherman owned a large tract of land, including the land in question, and he conveyed the entire tract to Alexander S. Diven. For the purpose of securing a portion of the purchase money, Diven and wife executed a mortgage to Sherman. On the same day they also executed another mortgage to William J. Forbes. Both of these mortgages were subsequently assigned to George M. Diven, and by him they were foreclosed, and Charles J. Langdon became the purchaser of the premises at the foreclosure sale. He subsequently, in July, 1878, conveyed the land in question, with other land, to the plaintiff, and it is without dispute that she thus obtained the legal title to the land. The defendants Spargur and Doty, under whom the other defendants justify. claim to have an equitable defense to the action, and claim, too, a conveyance of the land, growing out of the following facts: In 1854 Alexander S. Diven conveyed the entire tract of land to Jarvis Langdon, and in 1859 Langdon conveyed one-half of the land to Ballard and Sampson, and in 1861 they gave Lester Dyke a contract for 200 acres of land, which included the land in question. In 1867 Dyke conveyed the land in question to Charles Rifle, and in 1877 Rifle contracted the land to Mrs. Hodgkins, and in 1880 she conveyed the land to the defendants Spargur and Doty. Dyke and Rifle were parties to the foreclosure action, and, at the time of the commencement of that action, Rifle was in the possession and occupancy of the land in question, and neither Diven nor Langdon had any notice of any rights or interest of Mrs. Hodgkins in the land. The defendants claim, and gave some evidence tending to show, that, prior to the commencement of the foreclosure action. George M. Diven, by the authority of Charles J. Langdon, made a verbal agreement with Lester Dyke and all others holding contracts from or under Ballard and Sampson that, if they would not interpose any obstacles in the way of the foreclosure, all their rights by virtue of their respective contracts should be protected, upon the payment of the balance due upon such contracts, and their pro rata share of the costs of foreclosure and some taxes. Rifle did not claim from Langdon. after the foreclosure sale, a deed of the land in question, but he consented and requested that the deed therefor should be given to the plaintiff. To secure the purchase money of the land conveyed to her, she gave to Langdon a mortgage thereon for the sum of about $700. Upon these facts, and others of little significance, the defendants Spargur and Doty claim that they are equitably entitled to a conveyance of the land, free from the last-mentioned mortgage. In addition to the reasons assigned in the able opinions of the two successive referees before whom this action was tried, which it would be a waste of time to repeat, the following reasons may also be given for sustaining the recovery by the plaintiff: 1. The defendants came into court confronted with the undisputed fact that the plaintiff has the legal title to the land. They rely upon an equitable claim which, in their defense to this action, they were bound to establish, as they would have been bound to establish it if they had commenced an action for the same equitable relief. In September, 1865, Lester Dyke conveyed the land in question to Ebenezer M. Robinson, by a deed acknowledged September 7, 1865, and recorded February 22, 1866. The deed acknowledged a consideration of $350. Subsequently, Robinson gave Dyke a mortgage for $350, dated February 26, 1866, and acknowledged March 10, 1866. That mortgage was assigned by Dyke to Darius C. Judd on the 22d day of March, and the mortgage and assignment were recorded April 2, 1866. The defendants did not, at the trial, offer any explanation of these documents, and they show that Dyke had parted with all his interest in the land at least a year before his conveyance of the same land to Rifle, through whom the defendants claim. It thus appears that Spargur and Doty never acquired a particle of title, legal or equitable, to the land, and that they have no standing to enforce a conveyance thereof to them by the plaintiff. It is possible that these facts admit of some explanation, but such explanation should have come from the defendants. With these facts in the record undisputed and unexplained, the title of Robinson and of the holder of his mortgage could not be subverted by a conveyance to Spargur and Doty under any judgment in this action. No facts are alleged in the answer, and none were proved upon the trial, which estop the plaintiff from disputing the conveyance of Dyke to Rifle, or any of the conveyances under which Spargur and Doty claim. At the time she took her deed from Langdon, she did not have actual or implied notice that any one but Rifle had any interest in this land under the Ballard and Sampson contract, and he gave up his interest and consented to the conveyance to her. It is immaterial that there is no finding by the referee as to the facts relative to the deed to Robinson. Those facts are undisputed, and may be considered for the purpose of upholding the judgment. 2. But, if the obstacle in the defendants' pathway just pointed out did not exist, their defense must still fail. The title of Spargur and Doty depends upon the contract given by Ballard and Sampson to Lester Dyke. He had no deed, and when he conveyed to Rifle, if he conveyed anything, it was his interest under the contract, and he simply gave Rifle a right to a conveyance of the land from Ballard and Sampson, upon performance by him of the contract. Neither Dyke nor Rifle ever performed the contract, and Mrs. Hodgkins did not perform it. Nor did Spargur and Doty perform it. They did not even offer to perform it in their answer, which was served about 20 years after the date of the contract; and upon the trial of the action, about 30 years after the date of the contract, there was no offer on the part of the defendants to perform the contract, and it did not appear that they were ready, willing, or able to perform it. Even if any obligation rested upon Langdon or the plaintiff to protect that contract, or the persons holding or claiming any land under it, the protection was not due until they paid the balance due upon the contract, besides costs and taxes. The plaintiff stands in the place of Langdon, and she could not, in any event, be deprived of the land in question until payment to her in accordance with the alleged agreement upon which the defendants base their equities. The defendants cannot now claim that the referee ought to have provided in the judg ment awarded by him that, upon making such payment, Spargur and Doty should have a conveyance of the land, because they did not ask for such relief, and did not place themselves in a position to be entitled to it. Mrs. 3. But, passing by these obstacles to the defendants' success, there is another obstacle which they did not overcome. Mrs. Hodg kins did not have any deed of the land. She had only a contract for a deed, and when she deeded the land to Spargur and Doty she simply transferred to them her rights under her contract with Rifle, and they took her place. That contract was made in April, 1877, and has never been performed. Hodgkins not only did not perform on her part, but actually disabled herself from performance; and Spargur and Doty never performed it, never offered to perform it, and are actually unable to perform it. Their rights depend upon that contract, and they were bound to show that they had some subsisting rights under it before they were in a position to assert any equities in this action. The plaintiff cannot be compelled to vest them with the legal title to the land while they are not entitled to a conveyance thereof from any one. Rifle has a right to be heard in reference to the performance of his contract with Mrs. Hodgkins, and he is not a party to this action. At the time of the conveyance by Langdon to the plaintiff, Rifle evidently ignored or repudiated that contract; and no one can say, from anything appearing in this record, that he did not have the right to do Spargur and Doty were bound to make So. |