Lipinsky v. Boyle — 32 Del. 276

Majority

p. 276

William Lipinsky and Clara Lipinsky, d. b. a., vs. Frank M. Boyle, p. b. r.

Headnote

Landlord and Tenant — Measure of Damages to Lessee, Given Possession of Only Part of Leased Premises.

A lessee, given possession of only part of the premises leased, was entitled to damages measured by the difference between the rental value of the portion of which he was given possession and the rental value of the premises as a whole for the propose for which it was rented.

(May 28, 1923.)

Rice, J., sitting.

James Saulsbury for plaintiff below, respondent.

Caleb E. Burchenal for defendants below, appellants.

Superior Court for New Castle County,

May Term, 1923.

Appeal from Court of Common Pleas,

No. 244,

September Term, 1922.

p. 277

Action on the case by Frank M. Boyle, lessee, against William Lipinsky and Clara Lipinsky, lessors, to recover damages for failure of defendants to give possession to the plaintiff of a portion of the land alleged to have been described in a written lease not under seal.

charging the jury with respect to the measure of damages, said:

If you find from the evidence that the plaintiff, under the terms of the lease, was entitled to the possession of the inclosed lot, at the rear of the garage, then your verdict should be in favor of the plaintiff for the loss and injury which he has sustained by reason of the failure of defendants to perform their agreement in full; the measure of damages being the difference between the rental value of the land and premises of which he was given possession, and the rental value of all the premises, including the enclosed lot in question, taking into consideration the value of the land he did not get in connection with the land and premises as a whole, as adaptable to the purposes for which it was leased, as the same may appear from the evidence.