Peter Lush vs Thomas Lundy, Part 4

No. 180, June Term 1887

Peter Lush

vs.

Thomas Lundy

Counsel for the Defendant respectfully requests the Court to charge the jury as follows:

         First.   It having been proven on the part of the plaintiff that the premises were leased for saw mill purposes, and there being no specific provision in the lease as to the removal of offul, the leaving of slabs and saw-dust upon the premises by the tenant at the expiration of his tenancy, does not constitute a breach of any covenant contained in the lease. 

         Second.   That the evidence in this case upon the part of the plaintiff does not prove a breach of the covenant upon the part of the defendant that he was to leave the premises in as good condition as they were at the date of the lease, reasonable wear and tear and accidents by fire excepted.

         Third.   That for a breach of the covenant to leave the premises in as good condition &c., the measure of damages is the amount by which the value of the of the reversion is decreased by the failure to perform, and not the amount required to repair and put in good condition.

         Fourth.   That in considering the damage sustained, if any, by reason of the alleged breach of the covenant contained in the lease, the jury should consider whether or not the market value of the premises has been affected and how much, but they must not assume either that the slab piles or saw-dust will burn, or if they do burn, that the plaintiff, as owner of the premises, would be responsible for possible damages done to other property.

         Fifth.   That under all the evidence in this case the verdict shall be for the defendant.

(signed) H.C. McCormick

Atty for Deft.

Oct. 13, 1887

Deft Points

Filed: Oct. 13, 1887