
    Driggs vs. Dwight.
    Where a party agrees to demise certain premises to another, who breaks up his establishment and proceeds with his family and furniture to the place where the premises are situate, and the landlord refuses to give possession, the tenant is entitled to recover the damages sustained by him by such removal of his family and furniture, although special damage is not alleged in the declaration.
    The tenant in such case is not bound to prove that he demanded a lease from the landlord or tendered one executed by himself, especially if it be shown in addition to the refusal to give possession, that the landlord did not intend to perform the contract.
    Where in such case it was alleged in the declaration, that by the agreement it was stipulated that the rent should be payable quarterly and the proof did not correspond with the declaration in that particular, it was held, that on a writ of error the party could not avail himself of the variance, not having raised the objection at the trial.
    • Error from the Erie common pleas. Dwight brought an action of assumpsit against Driggs, and declared against him for that on the 15th March, 1834, it was agreed between the parties that in case the plaintiff should procure one Calvin Nelson to become surety for the rent, the defendant would let to the plaintiff a tavern stand 'and all the appurtenances thereto belonging (excepting certain premises specified,) situate at Tonawanda, for the term of one year at a rent of $275, payable quarterly, and deliver possession between the 15th April and the first day of May then following, and that a lease should be executed bearing date of the day when possession should be delivered: that mutual promises were accordingly made to perform the agreement. The plaintiff averred that on the 17th March, 1834, he procured Nelson to become surety for the payment of the rent, and on various days between that day and the first of May, tendered the security thus obtained to the defendant, offered to take a lease and requested the [72] defendant to let the premises to him by a lease to be dated of the day when possession should be delivered; and also on divers days between the 15th April and the first day of- May, requested the defendant to deliver possession of the tavern stand and appurtenances subject to the reservations aforesaid. He then assigned for breach that the defendant did not on the 17th March, nor at any time between that day and the first day of May, lease to him the tavern stand, &e., upon the terms and according to the agreement, nor did he between the 15th April and the first day of May, deliver possession of the premises, but on the contrary wholly refused, to the great damage of the plaintiff. The defendant pleaded non assumpsit. On the trial an agreement was proved substantially like that declared upon, except that the witness did not testify that the rent was to be paid quarterly (to which variance there was however no objection taken at the trial,) and excepting also that, the witness stated that part of the agreement was, that at the time possession should be delivered, a written lease was to be executed by the defendant to the plaintiff. The plaintiff proved that in the middle of March he caused Nelson’s security for the rent to be delivered to the defendant, who approved of the same as satisfactory, and accepted and retained it. On the first of May, 1834, the plaintiff demanded possession of the tavern stand, and the defendant refused to yield it up; the plaintiff did not offer or demand a lease; he only asked possession of the premises. He further proved that he moved his family and furniture from Cambria to Tonewanda, and on defendant refusing to yield up possession of the premises, was compelled to proceed with his family and furniture to Buffalo, a distance of twelve miles. This latter evidence was objected to as inadmissible on the ground that there was no allegation of special damage in the declaration; but the objection was overruled. The plaintiff proved the receipts at the tavern stand in the previous year and rested. The defendant moved for a nonsuit on the ground of several variances between the declaration and proof other than that above stated; and also that the plaintiff had failed to prove an offer of a lease executed by himself, or a demand of a lease executed by the defendant. The court denied the motion for a nonsuit. The plaintiff thereupon further proved that the defendant had applied to a third person to induce SSelson to withdraw the security for the rent; and also proved declarations of the defendant, that the tavern stand was worth from §1000 to §15^0 per annum to an occupant who would keep a good house; this last evidence was objected to, but the objection was overruled. The defendant proved by several witnesses that the value of the rent of the premises did not exceed $250 per annum. The judge charged the jury that the plaintiff was entitled to recover the damages necessarily resulting from the breach of the contract, and that the expenses of removing his family and furniture from Niagara county to Tonawanda, was a proper item of damage under the declaration in the cause. The defendant excepted to the charge, and requested the judge to instruct the jury that the measure of damages in the case was the difference between the actual value of the rent and the sum which the plaintiff had agreed to pay as rent, and that if he had agreed to pay more than what would be a fair rent for the premises, he was only entitled to nominal damages. The judge refusing so to charge, the defendant again excepted, and the jury found a verdict in favor of the plaintiff for $235, upon which judgment was entered. The defendant sued out a writ of error.
    
      M. T. Reynolds, for the plaintiff in error,
    insisted that the plaintiff below ought to have been nonsuited, for that the declaration stated the rent to be payable quarterly, and no such proof was offered (Douglas, 655, 1 Starke's Ev. 398; 2 id. 46). The contract also was declared on as conditional, and the evidence showed it was absolute. By the terms of the agreement a ■written lease was to be executed, and no offer or demand of such lease was shown. The proof of damages received by the court below was inadmissible.
    
      S. Stevens, for the defendant in error,
    The variance between the declaration and proof, as to the rent being payable quarterly, was not raised [74] on the trial. The objection of variance as to the contract being stated' to be conditional, and the proof showing it to be absolute, is not supported by the record. The refusal to deliver possession was equivalent to a refusal to execute a lease, and under the circumstances of the case the plaintiff was relieved from tendering a lease on his part, it being apparent the defendant did not intend to perform the contract. The evidence of the value of the premises to a tenant was proper; as was also the proof of the damage sustained by the plaintiff in removing his family and furniture. In support of the last proposition, he cited 11 Price, 19.
   By the Court,

Cowen, J.

The objection of variance, as to the rent being payable quarterly, not having been raised on the trial, can not be urged upon a writ of error.

The plaintiff below was not bound to come with his lease executed, or to await the defendant’s time to execute a lease and renew the demand, after the latter had peremptorily refused to give possession. That any such effort would have been in vain and idle, is evident from the previous attempt of the defendant to procure the withdrawal of Nelson’s name as security. If the defendant was desirous to profit by the indulgence due to a grantor or lessor, in the allowance of time for preparing the conveyance, he should have said so, or at least not have taken ground which would have made a tender of a lease, or a demand of one, a most useless ceremony.

The measure of damages was certainly not confined to the difference of rent. The jury might look to the actual value of the bargain which the plaintiff had made.

As to the expense of the plaintiff’s breaking up of his former residence in Niagara and removing to Tonawanda, the declaration contained no special allegation of such loss, the inquiry is whether it be admissible under the averment oí general damage, as being a direct and necessary consequence of the defendant’s breach of contract. I have looked into Ward v. Smith (11 Price, 19), cited by the defendant’s counsel, and find it in point for letting in this proof under an allegation of general damage. Indeed, the case at bar bears, in all it features, a close resemblance to Ward v. Smith.

Judgment affirmed.  