
    Charles W. Caves, appellee, v. Joseph B. Bartek, appellant.
    Filed December 14, 1909.
    No. 15,805.
    1. Landlord and Tenant: Failure to Repair: Damages. In this action, in which damages are claimed for failure to repair plastering by a landlord whereby damage to bedding and clothing by mice was occasioned, the difference in the value of the articles damaged before and after the injury is not the proper measure of damages, and it was erroneous so to instruct the jury.
    2. Chattel Mortgages: Failure to Release. A mortgagee cannot be mulcted in damages for failing to release a chattel mortgage when he in good faith disputes the validity of another claim, not connected with the obligation to secure which the mortgage was given, which it is sought to compel him to accept as a part payment of the amount due on the note, and which he refuses to allow.
    Appeal from the district court for Lancaster county: Lincoln Frost, Judge.
    
      Reversed.
    
    
      John E. Barry and Morning & Ledwith, for appellant.
    
      O. M. Parker and George A. Adams, contra.
    
   Letton, J.

This action was brought by a former tenant against his former landlord upon four causes of action. As to the first cause, the petition sets forth that at the time the plaintiff rented the farm the defendant represented the buildings to be in good repair, but that the dwelling was in such a defective condition that mice and rats came through broken places in the plastering and injured his household goods and wearing apparel, to his damage in the sum of $25. He also alleges certain items of work performed and money expended for defendant to the amount of $17.10, upon which he claims a balance due of $8.30. The second cause of action was taken from the jury by the court, and will not be noticed. The third alleges that plaintiff executed a chattel mortgage to secure the rent; that he fully páid the same, and requested defendant to satisfy the mortgage on the first of March, 1905, but that defendant refused to release it until September 28, 1905; that plaintiff was thereby prevented from selling his stock, and was compelled to buy feed for the same during the intervening period, to his damage in the sum of $60. The fourth cause of action is for the $50 penalty provided by statute for the refusal of a. mortgagee to release a chattel mortgage of record, on payment and demand. The answer admits the lease and the giving of the mortgage, denies the refusal to release the mortgage, and sets up certain counterclaims. The reply is a general denial. The jury found for plaintiff, and assessed his recovery at $175, a sum in excess of the amount sued for in the three causes of action submitted to them. A motion for a new trial Avas filed. The court required a remittitur of $50, and overruled the motion.

The jury were properly instructed' as to liability for repairs. Before the case Avas submitted, the defendant made a motion to strike from the petition the claim of damage to household goods by rats and mice. This motion was overruled, and exception taken. In its charge the court instructed the jury: “In the event that you find from the evidence, and under these instructions, for the plaintiff under his ¿negations in his amended petition touching damages to bedding and clothes by rats and mice, and in the event you find for the 'defendant touching damages to hay by plaintiff’s cattle, and other allegations of a similar nature, you will allow the party injured the difference between the fair market value of the articles in question immediately before' and immediately after the damage so inflicted.” Under the circumstances of this case we think this was not the true measure of damages for a failure to plaster. Assuming, as the jury did, that plaintiff’s account of this matter is true, it seems that when he took possession under the lease the plastering in one room Avas in very bad condition, and in other parts of the house there were holes in it. When defendant first came to the place this condition was pointed out to him, and he told plaintiff to take the plastering off the room, wainscot it, get the plastering done, and take payment out of the rent. Plaintiff introduced a postal card from defendant in evidence, dated May 20, 1904, authorizing plaintiff to hire a plasterer, and deduct charges from the rent. He says that in June defendant told him that he would send a man to do this work, but that it was not done until October.

While the general rule is that the measure of damages upon the breach of an agreement by a landlord to make i-epairs is the difference between the rental value as the premises actually are and as they should have been according to the contract, still there are exceptions to this rule, and in this case, the agreement being made subsequent to the lease, and the premises being as they were, we think the plaintiff should have had the plastering done, and charged the defendant with the cost of it. It could not reasonably have been foreseen by the parties that, if the plastering was not promptly repaired, $25 worth of bedding and clothing would be destroyed by mice. Moreover, if mice were prevalent, it was the duty of the tenant, in any event, to try to guard against loss, from this source by some means, and not to let the damage go on when it might presumably have been prevented by reasonable effort. A discussion of this topic may be found in 24 Cyc. 1097, in line with these views.

The complaint is also made that there is no competent evidence as to the damages set forth iu the third cause of action, and that no instruction was given to guide the jury in measuring such damages. We have repeatedly held that a nondirection is not a misdirection, and will not usually work a reversal. If the defendant had requested such an instruction, in all probability the court would have given the same.

The other objections are more serious, and the same apply to some extent to the fourth cause of action as well. The plaintiff’s evidence shows that about two weeks before March 1, 1905, when the $200 note and mortgage became due, he sent to defendant a bill for $5.80 for work in connection with the plastering and wainscoting and for money paid. On March 1 plaintiff paid to the Oak Creek Valley Bank, to apply on the mortgage debt, a check for $191.20, and presented a bill against the defendant for $8.80 for the same items as in the former bill, with- others. Bartek was not present, but when he was informed of these facts the claim of $8.80 was disputed by him, and he refused to allow credit for the same upon the note. The matter was left unsettled until September 11, when the parties met at Valparaiso, and at that time the claim of $8.80 was allowed. At that time defendant was again requested to release the chattel mortgage. A release was made out on September 25 and filed September 28. All the damages claimed in the third caxxse of action occurred prior to this time. It is clear that there was a controversy between the parties as to these items claimed by plaintiff, and (fiber items claimed by defendant, all growing out of other transactions than the debt secured by the mortgage. A mortgagee cannot be mulcted ixx damages for failing to release a chattel mortgage when he in good faith disputes the validity of another claim, not connected with the obligation to secxxre Avhich the mortgage was given, Avhich it is sought to compel him to accept as a part payment of the amount due on the note, and Avhich he refuses to uIIoav. The clear weight of authority is that a mortgagee is not liable for a failure or refusal to release a mortgage Avhen the right of the person demanding such release is a doubtful question. Sullivan Savings Institution v. Sharp, 2 Neb. (Unof.) 300; Kronebusch v. Raumin, 6 Dak. 243; Parkes v. Parker, 57 Mich. 57; Huxford v. Eslow, 53 Mich. 179. If such a dispute existed, no damages can be allowed for anything occurring prior to the time when the dispute avus settled and the amount allowed as a credit.

As to the right to recover the statutory penalty, this depends upon what took place at the time the settlement was made, and upon this point we think the instruction of the court proper.

Considering the whole case, we think error occurred prejudicial to the defendant, and that a new trial should be had. The jury evidently were confused as to,the issues, or they Avould not have rendered a verdict in excess of the amount claimed by plaintiff.

The judgment of the district court is

Reversed.

Reese, C. J., not sitting.  