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tained by the selling of his stock, agricultural implements, etc., for less than their value."
Measure of damages, the rule underlying the matter in controversy must not be confused with the legal principles which determine the right to possession of the premises and the right to recover damages for breach of the contract. 30 Failure of the lessor to give possession, or eviction of the lessee after he has taken possession, confers upon the latter the right to treat the contract as rescinded and refuse to take the premises or pay the rent. The lessor's breach unless waived in some way, will defeat any remedy he may invoke for the enforcement of his contract. But the lessee is not bound to take possession. He may stand upon his
. contract and recover damages for the breach. He may demand so much of the land, or all of it, for so much of the term as the lessor is able to yield to him, and damages for what he has not or cannot give. He has a right of election. He cannot be compelled to take and pay for less than he contracted for, but he may take less, if he sees fit to do so, and recover damages by way of compensation for what he cannot get. Here, rigid, positive legal principles govern. The right of action and title to damages are fixed by law and are not subject to the control of courts and juries. But the measure of damages in such a case, the amount of the recovery, is quite another matter. Equitable considerations enter into it, although the right of recovery is founded in the law and the remedy is a legal one. The amount to be recovered must be proportionate to the extent of the injury, and, when the injured party has failed or refused to lessen his injury by such prudent action and reasonable exertion as were in his power, recovery will be denied to him to the extent of his failure of duty. This is a general rule, applicable, when the circumstances warrant it, on the adjustment of a great many classes of demands: Sutherland on. Damages, sec. 88. This author says: “The law imposes upon a party injured by another's breach of contract or tort the active duty of using all ordinary care and making all reasonable exertions to render the injury as light as possible. If by his negligence or willfulness he allows the damage to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of his duty, falls upon him." It is applicable between vendor and vendee and lessor and lessee: Sutherland on Damages, secs. 89, 90. This court recog. nizes and enforces the principle: Griffith v. Blackwater Boom & Lumber Co., 55 W. Va. 604, 48 S. E. 412, 69 L. R. A. 124;
IIurxthal v. St. Lawrence Boom Co., 53 W. Va. 87, 97 Am.
To have obtained the benefit of its entire contract for sixty months, five years, with the exception of only four or five months, it would have cost the lessee nothing more than the mere acceptance of the tender of possession and use, made by the lessors. Its acceptance of this would not have been a waiver of any right of action it had for general or special damages. By accepting, at the time the oiler was made, it would have taken from the lessors nothing more than it was entitled to have, not even all it was entitled to have. The rendition by the lessee of this portion of what they had bound themselves for would have constituted no consideration for a release or waiver on the part of the lessee: nor could it have in any sense constituted an estoppel. What element of injury or deception could have been involved in the acceptance of what the lessors tendered? The tender was accompanied by no demand for a waiver or release of damages. The lessee was simply notified that the property had been vacated by the former tenant and that the lessors then desired it to take possession under its contract. The argument, therefore, that the tender was insufficient and justified an award of general damages for the whole term is obviously fallacious and unsound.
No reason is shown why the lessee could not then have accepted the possession. The premises were vacant and open for occupancy by it not later than January 4, 1901. On December 14, 1903, less than one month before, it had tempo
rarily moved into another building, without any view to remaining there permanently or for a considerable length of time. It had no business room that it expected or was bound to hold. It was then in the market, according to its contention, for just such a property as the lessors offered. If the testimony had shown something peculiar in their situation, rendering the acceptance of the offered premises at that time burdensome and oppressive, and, therefore, sufficient, in equity and conscience, to absolve from the duty to take them, it might constitute a ground for another element or item of damages, general or special, but as the evidence disclosed nothing of the kind, it is unnecessary to consider it.
As the highest estimate of the rental value of the property was $150, and the contract rental $75 a month, the difference could not have exceeded four or five times said sum, which would have been less than $100 and, together with all that could have been recovered as special damages, would not have exceeded $600 or $650. As the verdict, after amendment by the court, exceeded this sum by more than $100, a principle declared in Robrecht v. Marling's Admr., 29 W. Va. 765, 2 S. E. 827, made it the duty of the court to set aside the verdict, because it exceeded in amount the sum which might have been found upon the evidence, after giving it all the weight and probative value that it was entitled to. In the case referred to, the court held: “If it clearly appear to the court that the verdict was made excessive by the admission of such illegal evidence, the court should set aside the verdict and grant a new trial; and if the evidence or facts are certified on writ of error, and the verdict clearly appears to the appellate court to be excessive because of the admission of such illegal evidence, said court will disregard such evidence, reverse the judgment and set aside the verdict.” Since there is not here even illegal evidence as a basis for the excessive amount of this verdict, the case is much stronger. As to two or three hundred dollars of the amount, there is no evidence at all.
An assigoment of error goes to the action of the court in refusing to allow a witness to testify that certain business
rooms, located in the same section of the city in which the leased property is situated, and not far distant from it, were completed and ready for occupancy in November, 1903. This evidence was offered for the purpose of rebutting evidence introduced by the plaintiff to the effect that diligent, but fruitless, effort had been made to obtain a storeroom in that portion of the city. The court excluded it on the ground of
the want of any evidence tending to show that the plaintiff or any of its officers or agents had any knowledge of the vacancy of said rooms. The burden of proving omission of duty, on the part of the plaintiff, to mitigate the damages rests upon the defendant: 13 Cyc. 192; James v. Kibler's Admr., 94 Va. 165, 26 S. E. 417. Evidence offered to establish a defense, operating to mitigate damages, ought to be sufficient in law to sustain a finding. It must extend to all the elements of such defense, which may include a number of connected facts, and usually does include two or more. The evidence offered must tend to prove all the essential facts, for the admission of only partial proof would confuse and mislead the jury. The evidence offered here fails to show that the rooms in question could have been rented by the plaintiff. The proposal was to prove only that they were completed and ready for occupancy. In excluding it, the court ruled properly.
For the error noted, the judgment will be reversed, the verdict set aside, and the case remanded for a new trial.
The Measure of Damages for Breach of a Covenant for quiet enjoyment is discussed in the note to Chestnut v. Tyson, 53 Am. St. Rep. 113; and the measure of damages for breach of a covenant of seisin is discussed in the note to Eames v. Armstrong, ante, p. 436.
HAGAN v. HOLDERBY.
[62 W. Va. 106, 57 S. E. 289.]
EJECTMENT-Right to Maintain.-Plaintiff to maintain the action of ejectment must have the legal title to the property sought to be recovered, and he must recover upon the strength of his own title, and not upon the weakness of the title of his adversary. (p. 962.)
JUDICIAL SALES-Receiver-Deeds-Evidence of Authority. A recital in a deed that it was made by a certain person as a receiver in a certain cause, and that he had authority to make it, is not suffi cient to show authority for its execution. (p. 963.)
JUDICIAL SALES-Evidence to Show Authority to Exclude Deeds. If a deed claimed to be executed by a receiver is offered in evidence, it is necessary to its admission that enough of the record of the court appointing the receiver appear to show that the court did authorize the conveyance of the particular property and that it had jurisdiction of the person whose property was directed to be conveyed, and that it also had jurisdiction of the subject matter. (p. 963.)
JUDICIAL SALES-Evidence of Giving of Receiver's Bond.— If a deed executed by a receiver is offered in evidence, it is neces
sary to show by the record of the court wherein the cause was pending that the receiver qualified by giving a bond as required by the court. (p. 964.)
EVIDENCE-Certificate of Clerk of Court.-A certificate of a clerk of court that the record of his court will show certain facts cannot be received as evidence of such facts. (p. 964.)
TRUSTS_Power of Sale When Created.-A will devising property to certain persons and appointing another to sell and dispose of it as to him seemed best for the interest of such heirs, and to invest or dispose of the proceeds for their best interests, clothes him with the absolute power of disposal of the property in fee. (p. 965.)
Williams, Scott & Lovett and Switzer & Wiatt, for the plaintiff in error.
R. L. Blackwood and G. O'Bierne, for the defendants in error.
107 SANDERS, P. The plaintiff in error, Susan Holderby, claims to be aggrieved by a judgment of the circuit court of Cabell county, rendered in an action of ejectment brought against her by Cornelius B. Hagan and others, heirs at law of Mary C. Hagan, deceased.
We find from the record that many years ago the Central Land Company of West Virginia, a corporation, by an executory contract in writing, sold and agreed to convey to Barbara Hylton a lot of land in the city of Huntington. Barbara Hylton later assigned all her right, title and interest in and to said contract to Mary C. Hagan, and directed the Central Land Company to execute a deed to her for the property therein described. Afterward, on the twenty-eighth day of August, 1886, Mary C. Hagan made and executed her last will and testament, which is herein incorporated in extenso and is as follows:
"Know all Men by these Presents: That I, Mary C. Hagan, wife of Bernard Hagan, of Huntington, County of Cabell, State of West Virginia, being of ill health but of sound and disposing of mind and memory, do make and publish 108 this my last will and testament. I give and bequeath all my property, both real and personal, to my children, Charles E., Cornelius B., Mary V., George V., Clarissa V. and Annie B., to be equally divided among them; share and share alike. I do hereby nominate and appoint my husband, Bernard Hagan, to be the executor of this my last will and testament without bond; and I further will, that should my said husband, Bernard Hagan, desire to dispose of said property above bequeathed in any manner he may deem best for the interests of my said children, or shall desire to invest the proceeds of the sale of said property in other property or securities for
Am. St. Rep., Vol. 125-61