ordinarily be recovered because under the rule of avoidable consequences the tenant should have made the repairs himself and recovered their cost from the landlord.85 But where the tenant in justifiable reliance on the landlord's promise to repair has suffered consequential injury which was a natural and probable consequence of the landlord's unexpected default, damages for the injury may be recovered. For breach of other covenants of landlord or tenant, the ordinary principles of the law of damages will generally furnish a sufficient guide. § 1405. Contract to give a lease. Jurisdictions which deny to one who has contracted for the purchase of real estate other relief against a vendor free from moral fault than a restoration of any payments and expenses which may have been incurred,87 would apply the same rule to a contract to give a lease; 88 but "where under such a contract the lessor has prevented the lessee from entering and occupying the leased premises, or where an owner of property has broken his agreement to give a lease thereof to a prospective tenant, the measure of damages in an action for this breach of contract, if no rent has been paid and if nothing further appears, is the difference between the actual value of the leasehold estate that should have been enjoyed and the agreed rental that was to have been paid therefor. This value, as in all cases in which 89 85 Collins v. Karatopsky, 36 Ark. 316, 329; Reinking v. Goodell, 161 Ia. 404, 133 N. W. 774, 143 N. W. 573; Campbell v. Miltenberger, 26 La. Ann. 72; Leavitt v. Fletcher, 10 Allen, 119; Flynn v. Trask, 11 Allen, 550; Tuttle v. Gilbert Mfg. Co., 145 Mass. 169, 13 N. E. 465; Reiner v. Jones, 38 N. Y. App. D. 441, 56 N. Y. S. 423; Goldberg v. Besdine, 76 N. Y. App. D. 451, 78 N. Y. S. 776; Cantrell v. Fowler, 32 S. C. 589, 10 S. E. 934; Brown v. Toronto General Hospital, 23 Ont. 599. 86 Culver v. Hill, 68 Ala. 66, 44 Am. Rep. 134; Miller v. Sullivan, 77 Kans. 252, 94 Pac. 266, 16 L. R. A. (N. S.) 737; Phillips v. Ehrmann, 8 N. Y. Misc. 39, 28 N. Y. S. 519; Blumenthal v. Prescott, 70 N. Y. App. Div. 560, 75 N. Y. S. 710; Parker v. Meadows, 86 87 See supra, § 1399. 88 Noyes v. Anderson, 1 Duer, 342, and see cases in the preceding section, n. 77. 89 Neal v. Jefferson, 212 Mass. 517, 522, 99 N. E. 334, 41 L. R. A. (N. S.) 387, Ann. Cas. 1913 D. 205, citing Jewett v. Brooks, 134 Mass. 505; Riley v. Hale, 158 Mass. 240, 33 N. E. 491; Dodds v. Hakes, 114 N. Y. 260, 21 N. E. 398; Giles v. O'Toole, 4 Barb. 261; Denison v. Ford, 10 Daly, 412; Cilley v. Hawkins, 48 Ill. 308; Bernhard v. Curtis, 75 Conn. 476, 54 Atl. 213; Leslie E. Brooks Co. v. Long, 67 Fla. 68, 64 So. 452; Favar v. Riverview Park, 144 Ill. App. 86; Skinner v. the value of real estate or an interest therein is concerned, means the value for any and all uses to which the property is adapted and can readily be applied. If it is capable of being used in some particular way and has an enhanced value by reason of its availability for such use, the fact may be shown, and the value to be ascertained is the value thus enhanced; not because this is any other or greater value than the real market value of the property, but because it is the real value which is the subject of inquiry, and that value must depend much upon the nature of the property and its availability or adaptability for advantageous or profitable use. This rule generally has been applied where the value of property taken for a public use is to be determined, but it is not limited to such cases." The value of a leasehold estate, like that of any interest, is to be determined with reference to the use to which it can be most advantageously put." 91 For breach by the tenant of an agree Gibson, 86 Kan. 431, 121 Pac. 513; Neal v. Jefferson, 212 Mass. 517, 99 N. E. 334, 41 L. R. A. (N. S.) 387, Ann. Cas. 1913 D. 205, citing Providence & Worcester Railroad v. Worcester, 155 Mass. 35, 29 N. E. 56; Maynard v. Northampton, 157 Mass. 218, 31 N. E. 1062; Blaney v. Salem, 160 Mass. 303, 35 N. E. 858; Sargent v. Merrimac, 196 Mass. 171, 81 N. E. 970, 11 L. R. A. (N. S.) 996, 124 Am. St. Rep. 528. (See also Hodges v. Fries, 34 Fla. 63, 15 So. 682; McCafferty v. Griswold, 99 Pa. 270.) "Neal v. Jefferson, 212 Mass. 517, 99 N. E. 334, 41 L. R. A. (N. S.) 387, Ann. Cas. 1913 D. 205; citing Manning v. Fitch, 138 Mass. 273; Tufts v. Atlantic Telegraph Co., 151 Mass. 269, 23 N. E. 844. The court added: "In this case both parties agreed that the property could best be used as a hotel for winter visitors, and that it was intended to be so used; and if that was so, the measure of damages was prima facie the value of the property for this use during the two years after June 1, 1910, over and above the rent which was to be paid therefor. That there might be some difficulty in fixing this value, or that its determination must be partly the result of an estimate rather than of an exact computation, does not affect the application of the rule. Magnolia Metal Co. v. Gale, 189 Mass. 124, 133, 75 N. E. 219; Hunt Boston Elevated Railway, 199 Mass. 220, 225, 85 N. E. 446; Page v. Johnston, 205 Mass. 274, 278, 91 N. E. 214. Putting the case in another way, the plaintiff has been prevented from making that use of the property which it was contemplated that he should make, and he is entitled to the damages which thus have been caused to him. Townsend v. Nickerson Wharf Co., 171 Mass. 501, 503; Kostopolos v. Pezzetti, 207 Mass. 277, 93 N. E. 571, Ann. Cas. 1912 A. 859; Snow v. Pulitzer, 142 N. Y. 263, 36 N. E 1059; Stewart v. Lanier House Co., 75 Ga. 582.” V. ment to hire property, the measure of damages is the difference between the agreed rent under the contract, and the rental value of the property, which may be shown by the rent which was actually obtained by a new lease, if the plaintiff used diligence in obtaining the best rent possible.92 § 1406. Negative agreements. If the defendant's contract is to refrain from action, difficult questions often arise as to the value of his performance. Breach of a contract to forbear temporarily to sue a debtor prima facie gives rise merely to nominal damages, if the creditor would have been entitled to interest for the period during which he had agreed to defer his action.93 A contract for permanent forbearance can ordinarily be set up as a complete defence to an action on the claim.94 But damages for breach of such a contract if made the basis of an action are the amount of the claim with interest and costs.95 A breach of a contract not to engage in business necessitates a valuation of the profits or increased profits the plaintiff would have made had the defendant kept his contract.96 And the profits the defendant made by doing business may be evidence of the added profit the plaintiff would have made had the defendant refrained from business.97 Not only the added profits the plaintiff would have made are recoverable but also compensation for any injury suffered by him 92 Cleveland v. Bryant, 16 S. C. 634; Massie v. State Nat. Bank, 11 Tex. Civ. App. 280, 32 S. W. 797; James v. Kibler's Adm., 94 Va. 165, 26 S. E. 417; Oldfield v. Angeles, etc., Co., 62 Wash. 260, 113 Pac. 630, 35 L. R. A. (N. S.) 426, Ann. Cas. 1912 C. 1050. 93 See Reid v. Johnson, 132 Ind. 416, 31 N. E. 1107 (breach of contract not to file mechanic's lien). In Deyo v. Waggoner, 19 Johns. 241, the plaintiff recovered the consideration paid by him. 94 See supra, § 338. 95 Indiana, etc., Ry. Co. v. Scearce, 23 Ind. 223. 96 Gregory v. Spieker, 110 Cal. 150, 42 Pac. 576, 52 Am. St. Rep. 70; Bauwens v. Goethals, 187 Ill. App. 563; Galucha v. Naso, 147 Ia. 309, 126 N. W. 146; Long v. O'Bryan, 28 Ky. L. Rep. 1062, 91 S. W. 659. See also Moorman v. Parkerson, 131 La. 204, 59 So. 122; Smith v. Brown, 164 Mass. 584, 42 N. E. 101; Salinger v. Salinger, 69 N. H. 589, 45 Atl. 558; Buckhardt v. Buckhardt, 36 Oh. St. 261, 42 Oh. St. 474, 51 Am. Rep. 842. 97 Peltz v. Eichele, 62 Mo. 171; Bennett Water Co. v. Millvale, 200 Pa. 613, 50 Atl. 155; Whorley v. Tennessee, etc., Co. (Tenn. Ch.), 62 S. W. 346. But see Montgomery, etc., Society v. Harwood, 126 Ind. 440, 26 N. E. 182, 10 L. R. A. 532; Dose v. Tooze, 37 Ore. 13, 60 Pac. 380. in his remaining business.98 On breach of a contract to give the plaintiff an exclusive agency he is entitled to recover the profits he would have made on transactions entered into by the principal through others.99 § 1407. Alternative contracts. As has been seen, contracts are sometimes put in the form of alternative agreements where the intention is to compel the promisor to perform one alternative by providing as the other alternative a performance so much more onerous as to be a penalty; or an alternative sum named may be liquidated damages.1 The interpretation of contracts made with such a purpose is that the desired performance must be rendered by a certain time, and that on default the liquidated damages or penalty shall automatically become due. The validity of such contracts has been previously considered, and it remains here to consider only such contracts as may be interpreted as intended to give a genuine choice rather than to subject the obligor to damages for failing to perform what was understood to be his real obligation. A promise of one of several alternative performances will give the choice of alternatives, unless the contrary is stated,3 to the person who is to render the performance. This will * Evans v. Elliott, 20 Ind. 283, 83 Am. Dec. 319; Galucha v. Naso, 147 Ia. 309, 126 N. W. 146. Cincinnati &c. Co. v. Western &c. Co., 152 U. S. 200, 38 L. Ed. 411, 14 Sup. Ct. 523; Wells v. National Life Assoc., 99 Fed. 222, 53 L. R. A. 33, 39 C. C. A. 476; Corbin v. Taussig, 137 Fed. 151; Schiffman v. Peerless M. C. Co., 13 Cal. App. 600, 110 Pac. 460; Mueller v. Bethesda &c. Co., 88 Mich. 390, 50 N. W. 319; Emerson v. Pacific &c. Packing Co., 96 Minn. 1, 104 N. W. 573, 1 L. R. A. (N. S.) 445, 113 Am. St. Rep. 603; Dunham v. Hastings, etc., Co., 95 N. Y. App. Div. 360, 88 N. Y. S. 835; Wakeman v. Wheeler, etc., Co., 101 N. Y. 205, 4 N. E. 264, 54 Am. Rep. 676; Bredemeier v. Pacific Supply Co., 64 Ore. 576, 131 Pac. 312; Cofield v. E. A. Jenkins Motor Co., 89 S. C. 419, 71 S. E. 969; Cranmer v. Kohn, 7 S. Dak. 247, 64 N. W. 125; Dr. Harter Medicine Co. v. Hopkins, 83 Wis. 309, 53 N. W. 501. But see Union Refining Co. v. Barton, 77 Ala. 148; Carlson v. Stone-OrdeanWells Co., 40 Mont. 434, 107 Pac. 419. 1See supra, § 781. 2 See supra, §§ 781, 782. As in, e. g., Standard &c. Co. v. Breed, 163 Mass. 10, 39 N. E. 346. 4 Co. Litt. 145a. "Fourthly, in case an election be given of two several things, alwaies he, which is the first agent, and which ought to do the first act, shall have the election. As if a man granteth a rent of twentie shillings or a robe to one and to his heires, the grantor shall have the 6 ordinarily be the promisor," but may possibly be the promisee. It should be noticed that even where a choice of performances is given to the promisor, the obligation may be so expressed as to indicate that the primary duty relates to one of them, and that unless the promisor manifests an election to perform the other his duty is single. And even under a true alternative contract the promisor's right of choice may be limited by a provision that the right to select one of the alternatives shall cease by a certain time or on a certain contingency. In such a case after the lapse of the time within which one alternative might be chosen, the obligation becomes single and the measure of damages for breach thereafter is based upon the value of the remaining alternative. The same is true after one alternative has been expressly chosen; or where all but one alternative are or have become impossible of performance, 10 or illegal. Where, however, no choice has been made either expressly by the promisor or automatically by the terms of the contract, or by law, the measure of damages for breach of such election; for he is the first agent, Co. Lit. 145a; Foster v. Goldschmidt, 21 Fed. 70; Galloway v. Legan, 4 Mart. (N. S.) 167; Barker v. Jones, 8 N. H. 413; McNitt v. Clark, 7 Johns. 465; Smith v. Sanborn, 11 Johns. 59; Mayer v. Dwinell, 29 Vt. 298. See example, supra, n. 4. 9 7 For example, the right commonly given an insurer against fire to restore the injured or destroyed property does not prevent the sole obligation of the insurer from being one for the payment of money until an election is made to substitute an obligation to restore. 8 Deverill v. Burnell, L. R. 8 C. P. 475; Russell v. Wright, 23 S. Dak. 338, 347, 121 N. W. 842; Wilson v. Graham, 14 Tex. 222; Levy v. Goldsoll (Tex. Civ. App.), 131 S. W. 420. See also Walton v. Coulson, 1 McLean, 120 (affd. 9 Pet. 62, 9 L. Ed. 51); Wolfe v. Parham, 18 Ala. 441. Morrell v. Irving F. Ins. Co., 33 N. Y. 429, 88 Am. Dec. 396; Dimmick v. Banning, 256 Pa. 295, 100 Atl. 871. 10 Bute v. Thompson, 13 M. & W. 487; Drake v. White, 117 Mass. 10; State v. Worthington's Ex'rs, 7 Ohio, 171. But see Laughter's Case, 5 Co. 22. 11 Erie R. Co. v. Union, etc., Co., 35 N. J. L. 240. |