I agree that the judgment in this case should be reversed, but I find myself unable to agree with the other members of the court in the principles of law declared by them. I think the trial court has applied the proper measure of damages, under the facts disclosed by the record. There is nothing in the case to take it out of the general rule which fixes the measure of damages as the difference between the actual rental or market value and the rent reserved in the lease, with such additional damages as accrued to appellee incident to the removal of its stock of goods.
Profits are ordinarily regarded as not recoverable in this state, in cases of this character, on account of the speculative and uncertain nature thereof. De La Zerda v. Korn, 25 Tex.Supp. 193; Loyd v. Capps (Tex.Civ.App.) 29 S.W. 505; Wilkinson v. Stanley (Tex.Civ.App.)43 S.W. 606. The general rule adopted by the trial court seems to be universally recognized, and has been adopted by the courts of this state, both in leases of urban property as well as farms and pasture land:
"The value of the use and occupation or rent of the premises would undoubtedly be a proper subject of computation, and so would the injury to defendant's goods." De La Zerda v. Korn, supra.
In the Loyd v. Capps Case, supra, the court held that the measure of damages for eviction from a farm was "the difference between the agreed rent and the worth of the use of the land, where no special damages are *Page 166 shown." It was also held in the Loyd v. Capps Case that such difference would constitute the value of the plaintiff's contract, and this holding was approved in Rogers v. McGuffey, 96 Tex. 565, 74 S.W. 753, involving the breach of a farm lease. In Haker v. Boedeker, 1 White W. Civ. Cas. Ct. App. § 1034, the court said that the measure of damages for breach of the lease was "the fair rental value of the premises, and no more." That was a farm lease, where no crops had been planted at the time of the breach.
In Murphy v. Service, 2 Willson Civ. Cas. Ct. App. § 748, involving the breach of a lease by the lessor of a business house, the court said the measure of damages was the difference between the agreed rent and the actual value of the premises, at the time of the breach, for the unexpired term. The case of Buck v. Morrow, 2 Tex. Civ. App. 361.21 S.W. 398, involved the question of damages for the breach of a lease of a pasture. The court applied the same rule, but not allowing the plaintiff to recover additional special damages which accrued to him by reason of having to hold his cattle temporarily on other lands. To the same effect is the holding in Wilkinson v. Stanley, supra, and the rule seems to be considered as settled by the text-writers upon this subject. Taylor's Landlord and Tenant (9th Ed.) § 617; 36 C. J. p. 83, § 709; 2 Underhill on Landlord and Tenant, 1184, § 698; 3 Sedgwick on Damages, § 1022; 1 Tiffany on Landlord and Tenant, 538; 3 Sutherland on Damages (4th Ed.) 3186. The English rule is so stated in Lock v. Furze, 15 Eng. Rul. Cas. 739.
I cannot assent to the proposition so broadly stated by my Brethren that, because appellee Avery Sons could not, under Revised Statutes, art. 5237, sublet or assign the lands and tenements, the lease had no market value. It is true that such is the rule declared in Steger v. Barrett, 58 Tex. Civ. App. 331, 124 S.W. 174, but I am not prepared to assent to such holding. That was a case where the plaintiff sued for damages for the negligent burning of a house and certain personal property owned by him, situated upon leased land. The court said:
"By the fourth assignment it is contended that the court erred in refusing the special charge instructing the jury that `the measure of plaintiff's damage by loss of his improvements was the fair market value at the time they were burned, or, if they had no market value, then their fair value to him.' The court instructed the jury to ascertain and find from the evidence the `fair actual value' on the day of the burning of the buildings. The improvements were located on leased premises, as it appears. The lease contract in evidence expressly provided that the leasehold should not be assigned or sublet. As a matter of law, a leasehold cannot be sold without the consent of the landlord, and consequently has no market value. Moser v. Tucker, 87 Tex. 94,26 S.W. 1044. Such things are not usually sold on the market. In the absence of proof to the contrary, as in this case, the court was authorized, as a matter of law, we think, to assume that such property has no market value; and, in confining the jury to `fair actual value,' the charge was in accordance with the evidence, and there was no reversible error in refusing the special charge."
The Moser v. Tucker Case cited does not sustain the rule so broadly stated in the Steger Case. The only question decided in the Moser Case is that, under the statutory inhibition against the assignment of a lease, the lessee's interest cannot be sold under execution. In the Moser Case an insolvent debtor had assigned his lease to certain attorneys. His creditors attacked the assignment, insisting that they had a right to subject it to the payment of the insolvent's indebtedness to them, by a sale under execution. It is nowhere intimated in the Moser Case that the statutory inhibition rendered the leasehold interest valueless, and for this reason it does not, in my opinion, support the doctrine announced in the Steger Case.
"Actual value," "market value," "market price," "cash value," "salable value," all mean the same thing. Milwaukee Mechanics' Ins. Co. v. Frosch (Tex.Civ.App.) 130 S.W. 600; 1 C. J. 1186. "Rental value" and "value of the use" also mean the same thing. Jones on Landlord and Tenant, 401, § 369.
In determining the value of the leasehold, it has been declared that its worth is not the amount it would bring, if offered for sale in open market; but its actual value determines that question. In other words, it is the sum which one would be obliged to pay for a term of equal duration in premises equally desirable, for a business or for the use he intended to make of it. This is the holding in Jonas v. Noel, 98 Tenn. 440,39 S.W. 724, 36 L.R.A. 862. It is clear, from the record before us, that the "market value" and the "actual value" of the lease in question are the same, call it what you will. This is a case where "nomenclature" is unimportant. The effect of the lease in this case was to give Avery Sons right of possession and use of the premises for the term stipulated; but, because they could not sublet it or assign their lease, this fact, in my opinion, did not deprive the leasehold of what may be termed a "market value." The mortgagor of personal property in this state is prohibited, by the Penal Code, from selling or disposing of the property; but this does not preclude him from proving and recovering its market value from a third party, or even the mortgagee who illegally converts or destroys it.
An uncertain equitable interest in land cannot be sold under execution. Neither can property in custodia legis be sold by the custodian or under execution (Edwards v. Norton, 55 Tex. 405); but in such case I think it cannot be seriously contended that such property would not have a market value, or that *Page 167 its market value could not be established by proof of the market value of other similar property so situated. If the property in question could have been leased, if vacant, for any sum, then I think such sum was its market value, or actual value. This value was proven by witnesses who knew what amount of rent other property of that kind was being leased for in Amarillo. This proof did show that the leasehold estate had a market value which the court found to be $350 per month. Since the court found that it had a market value, and this finding is supported by both pleadings and evidence, judgment was properly predicated thereon, whether, under the statute, this particular leasehold could have been then sold or not. Wilson v. Hagins (Tex.Sup.) 295 S.W. 922.
I respectfully dissent from the holding of my associates with reference to the rules which should govern the recovery of damages in this case, upon another trial. Aside from this issue, however, I am of the opinion that the general demurrer should have been sustained to the plaintiff's petition. I do not think plaintiff was entitled to recover according to its allegations. It is alleged that Alex Davidson had a mortgage upon the property prior to the time of the execution of the lease; that, upon default on the part of appellants in certain payments due under the mortgage, Davidson filed suit against appellants and foreclosed his mortgage lien; that an order of sale was issued, the property duly sold thereunder on the 6th day of July, 1926, by the sheriff of Potter county, at which sale Davidson, the mortgagee, became the purchaser of the lands and tenements described in the lease. The plaintiff then alleges:
"Thereupon the said Alex Davidson, the purchaser at said sale, his agent and assigns, did assert the paramount title to said premises, and did demand possession thereof from your plaintiff, who, in deference to said paramount title so acquired by said Alex Davidson, on or about the 1st day of August, 1926, was compelled to deliver possession unto him of the said premises."
It is my opinion that this allegation shows a voluntary abandonment of the premises upon the request of Davidson, "in deference" to his assertion of a paramount title. Davidson was only a mortgagee out of possession, and did not have the paramount title until July 6, 1926, when he purchased under his foreclosure sale. Eviction, in a case of this character, by the great weight of authority, never means a voluntary surrendering of possession in deference to a paramount title; but there must be actual dispossession by force or process. The fact that appellee was not made a party to the foreclosure proceeding against Kennerly et al. did not entitle Davidson to a writ of possession against it.
In the early case of Lockhart v. Ward, 45 Tex. 227, it is held that a tenant for a term of years has a right to redeem, and is a necessary party to a suit to foreclose a mortgage upon the land, executed by his landlord; that a judgment of foreclosure, in which the tenant for years is not made a party, is not conclusive against him, and does not cut off his equity of redemption. If Avery Sons had been made parties to that action, then, according to the well-established rule, its equity of redemption would have been concluded by the judgment and sale, and the lease would have been terminated. Having failed to make it a party, its lease and right of possession thereunder was in no way canceled or affected by the decree. Wootton v. Bishop (Tex.Civ.App.) 257 S.W. 930 (writ of error refused); Bateman v. Brown (Tex.Civ.App.) 297 S.W. 773.
Since no writ of possession could be issued against Avery Sons, based upon a judgment to which it was not a party, it could not have been lawfully dispossessed until its lease had been duly canceled, or its equity of redemption determined by a decree of a court of proper jurisdiction entered against it. Its right to occupy the premises could not have been challenged and the sale of the fee in no way affected its leasehold estate. Brush v. Fowler, 36 Ill. 53, 85 Am.Dec. 382; Wheat v. Brown, 3 Kan. App. 431, 43 P. 807; 1 Underhill on Landlord and Tenant, 33, § 31; 1 Tiffany on L. T. 419, § 73.
It is said in 1 Wiltsie on Mortgage Foreclosure (4th Ed.) 505, § 371:
"Every tenant who takes a lease from the owner of the equity of redemption in mortgaged premises, subsequent to the execution and delivery of the mortgage, is a necessary defendant to a foreclosure, in order that title may be conveyed free from any claim or lease on his part. Any occupant or person in possession of the premises at the time of the commencement of the foreclosure is also indispensable, no matter how or under what circumstances he came into possession. A tenant or occupant not made a party is not bound by the decree and if omitted, he cannot be ejected till the expiration of his tenancy. Though his rights are expressly made subject to the mortgage, the rights of the tenant are not cut off unless he is made a party."
That part of the text where the author says the tenant "cannot be ejected till the expiration of his tenancy" is not supported by the cases he cites, but, with this exception, the excerpt is fully in accord with all the decisions I have read. It is held in Alford v. Carver,31 Tex. Civ. App. 607, 72 S.W. 869, that, where a lessor mortgagor has not been made a party to a foreclosure by the mortgagee, although the lien has been foreclosed as to the lessee, such judgment does not cancel the lease, and the mortgagor lessor may still collect the rental from the lessee. In a note to Metropolitan Life Ins. Co. v. Childs Co., 14 A.L.R. 664, citing numerous authorities, it is said: *Page 168
"Whether a lease of real estate previously mortgaged is terminated by a foreclosure action and sale is held by the majority of the decisions to depend on the joinder of the lessee as a party to the foreclosure action. Though there are some conflicting decisions, such a lease, by the weight of authority, is thus terminated in case, and only in case, the lessee is made a party to the foreclosure suit."
Under these well-established rules, I am unable to agree that Avery Sons, who are still in possession under a valid lease, which has not been canceled, and against whom no writ of possession could issue, and who had the right to redeem, can maintain an action for damages after having voluntarily surrendered the premises in deference to a paramount title asserted by one who had purchased under a foreclosure sale madeafter the lease had been executed. The covenant for quiet enjoyment had not been breached. The long-established rule of the common law is that a covenant for quiet enjoyment in no way relates to the title, but guarantees possession only. At the time of the sale under execution, Avery Sons had this possession, and the rule is well established that a mere demand for possession by one claiming paramount title, which has been matured after the lease, is not eviction, nor tantamount to eviction. This rule is clearly announced by the Supreme Court of North Carolina, in Cowan v. Silliman, 15 N.C. 46. There, there was a demand for the possession of a slave. Ruffin, Chief Justice, said:
"If the covenant be for quiet possession, I think it has not been broken. In the superior court it was held that the demand of the owner was a breach, because it rendered the present plaintiff chargeable in an action for the value. That cannot govern the case, because he was so chargeable without demand upon his purchase, possession, and claim of property, or, at all events, would have been, by a sale, which would have been of itself a conversion. This would be to sink the distinction between a covenant for title and that for quiet enjoyment. That a warranty of chattels, constituted in this deed by the words `warrant and defend,' is a covenant for quiet enjoyment, is a settled rule in this state. It has been understood by the profession too long to admit now of a question. Hence upon eviction the value at that time is the measure of damages. It is familiar doctrine, in reference to land, that suit and even recovery is no breach, unless the loss or disturbance of possession follows. I had thought it equally so in relation to chattels. The reason is the same. The covenants respect the possession. The opinion of the court is that in holding a demand by the owner of the slave to be a breach of the covenant for quiet possession, the superior court erred."
This rule has been recognized and enforced in this state. In Atler v. Erskine, 50 Tex. Civ. App. 576, 111 S.W. 186, which was a suit for the rescission of a contract of sale, or, in the alternative, to recover on an alleged breach of warranty of certain lands, Judge Neill said:
"Therefore the question to be determined may be stated thus: Did defendant's refusal to deliver possession upon the demand of plaintiff constitute a breach of his warranty, such as to authorize plaintiff to recover from him the value of the consideration paid, with interest from the date of the demand? * * * Ordinarily such a covenant is only broken by an eviction, or something equivalent thereto. There is a breach whenever there is an involuntary loss of possession by reason of the hostile assertion of an irresistible title. The eviction may be constructive, as when the purchaser is unable to obtain possession by reason of the paramount title being in a third person. Flanagan v. Ward,12 Tex. 209; Peck v. Hensley, 20 Tex. 674. The eviction must be alleged and shown to be by a paramount title existing before or at the time thedefendant made his covenant, for the covenant of warranty relates solely to the title as it was at the time the conveyance was made, and only binds the grantor to protect the grantee and his assigns against a better title existing before or at the date of the grant."
In the instant case there is no allegation of an involuntary loss of possession by reason of the hostile assertion of an irresistible title. The allegation is a voluntary abandonment of possession in deference to the title. Moreover, the appellee's petition shows that the paramount title in Davidson was not acquired until after appellee had leased the land. Under the rule in Texas, Davidson, as a mortgagee, had no title whatever. He simply had a lien to secure his debt. In discussing this question, it was said in Jones' Heirs v. Paul's Heirs, 59 Tex. 41, 45:
"The possession of the vendee under the title which he acquired with the warranty is not disturbed by the mere existence of the superior title, and he has no right to presume that it will be disturbed until he actually feels its pressure upon him. * * * This rule presupposes that the vendee has taken possession of the land and has suffered an eviction, either actual or constructive. When, however, the vendee has not taken possession, the same author lays down the following rule as best supported by reason and authority: `When, at the time of the conveyance, the grantee finds the premises in possession of one claiming under a paramount title, the covenant for quiet enjoyment or of warranty will be held to be broken without any other act on the part of either the grantee or the claimant.' This rule is put upon the ground that the possession of the holder of the superior title is an assertion of that title, and the law will not compel the grantee to commit a trespass upon the land in order to enable him to bring an action upon the warranty. Rawle, p. 154. The possession here spoken of is an actual possession. Moore v. Vail, 17 Ill. 190.
"It is true that in this country the real owner of land is said to be seized of the land, and constructively in possession, so that he may treat an unauthorized entry by another person as a trespass. Whitehead v. Foley, 28 Tex. 268. But inasmuch as the mere existence of a *Page 169 superior title in the real owner does not work an eviction of a covenantee, who has entered upon the land, we hardly see how it can evict one who has received a conveyance with warranty, but has made no actual entry. Our opinion, therefore, is that the statute of limitations did not commence to run against the plaintiffs until there was actual possession of the land under the superior title, and we think it would be so, notwithstanding the fact that the deed from Paul to Jones contained a covenant of seizin, as well as of warranty, and that the former covenant was broken as soon as made. * * * There was a special demurrer to this amendment, because it did not show when the adverse possession commenced. This demurrer should have been sustained."
See, also, Eustis v. Cowherd Bros., 4 Tex. Civ. App. 343, 23 S.W. 737.
I think these cases announce the rule and sustain the proposition that a mere demand for possession by Davidson does not constitute an eviction, where Davidson acquired the paramount title after the appellee's lease was executed, and that appellee was not justified in abandoning the premises upon such assertion of paramount title, and that no suit for damages for eviction could be maintained until it was shown that they had been actually dispossessed, either forcibly or under a judgment which canceled their lease and gave Davidson the right of possession.
In support of the contrary rule, the majority cite 2 Underhill on Landlord and Tenant, par. 692, 2 Tiffany on Landlord and Tenant, par. 186, and several sections of Corpus Juris. It must be conceded that in some jurisdictions the tenant may not necessarily remain upon the premises upon which a prior lien has been foreclosed, and require actual and virtual ouster before he would be entitled to maintain an action for damages; but 1 find these cases to be an exception to the general rule. I have read nearly all of the cases cited in support of the text quoted in the majority's opinions, and I find that they are cases, with few exceptions, where eviction by paramount title was pleaded as a defense by tenants in an action by their landlords to recover rents.
In such cases the general rule is that the tenant may abandon the premises upon assertion of paramount title, or attorn to the holder of the paramount title, and successfully defend an action brought by his landlord for the rents. The reason of that rule is that it would be inequitable to require the tenant to pay rent to one whose lease had been breached through his own neglect and failure to protect his own title to the premises. Reference to some of the cases shows that the rule insisted upon by the majority is inapplicable to the instant case, where the tenant seeks to recover damages for breach of the covenant.
Moffat v. Strong. 22 N.Y. Super. Ct. 57, is a case where a tenant was sued for rent by the landlord, and "yielded under the pressure of danger that the building would be thrown down" by his landlord.
Camp v. Scott, 47 Conn. 366, is a suit by the landlord against the tenant for rent, in which the tenant defended only upon the ground that the paramount title was in another.
Marsh v. Butterworth, 4 Mich. 575, is a suit for rent by a landlord who never had any title to the premises, and it was shown that he had no authority to collect rents.
Home Life Insurance Co. v. Sherman, 46 N.Y. 370, is a case where there was an actual eviction by judgment in favor of the holders of the paramount title, after which the landlord sued for rent.
Hyman v. Boston Chair Mfg. Co. (Super.Ct.) 11 N.Y.S. 52, shows that judgment in summary proceedings had been rendered against the tenant and his immediate landlord, awarding possession to the superior landlord, and the tenant was allowed to defend upon the issue of paramount title.
Simers v. Saltus, 3 Denio (N.Y.) 214, was a suit by the landlord for rent, after a foreclosure of a mortgage against both the landlord and tenant, and an attornment by the tenant to the purchaser under the foreclosure sale.
In cases like the one under consideration, the rule established by the weight of authority is illustrated by the case of Mason v. Lenderoth, 88 A.D. 38, 84 N.Y.S. 740. I quote from the opinion as follows:
"During the month of September, and until the 20th or 25th day of October, 1901, the defendant was occupying the plaintiff's premises as tenant under a written lease, by the terms of which he agreed to pay the plaintiff the monthly rental of $25 from May 1, 1901, to May 1, 1902. No rent was paid under the lease for the said months of September and October, and this action was brought to recover the amount alleged to be due for those months. At the time the lease was executed and delivered there was a mortgage on the demised premises, and in June, 1901, an action was begun to foreclose this mortgage. The defendant, as lessee in possession of the mortgage premises, was made a party defendant, and duly served with the summons and notice of the object of the action. Judgment of foreclosure and sale was entered on October 7, 1901. On November 1, 1901. the property was sold pursuant to such judgment, and at some time thereafter the referee's deed was delivered to the purchaser. Meanwhile, and between October 20 and 25. 1901. the defendant voluntarily gave up possession and occupancy of the premises.
"Upon this state of facts the defendant was awarded judgment against the plaintiff in this action for $100 damages and costs upon his counterclaim for damages alleged to have been sustained by reason, as is alleged, of the termination of the lease by the said judgment of foreclosure and sale. There was no attempt to show actual eviction, and there could have been no constructive eviction in any event, before the foreclosure sale and the delivery of *Page 170 the referee's deed to the purchaser; until that time, at the earliest, the rights of the parties as landlord and tenant were not affected by the foreclosure action. Whalin v. White, 25 N.Y. 462; Mitchell v. Bartlett,51 N.Y. 447; Peck v. Knickerbocker Ice Co., 18 Hun, 183; Cummings v. Rosenberg, 6 Misc.Rep. 538, 27 N.Y.S. 134; O'Neill v. Morris,28 Misc.Rep. 613, 59 N.Y.S. 1075.
"The defendant, however, insists that he was compelled to, and did, vacate the premises by reason of the foreclosure action; that he was thereby disturbed in the beneficial enjoyment of the premises and there was consequently a breach by the plaintiff of the covenant for quiet enjoyment contained in the lease. * * * The alleged breach of the covenant was perhaps a proper subject of counterclaim in this action. Mayor v. Mabie, 13 N.Y. 151, 64 Am.Dec. 538. But the fact of eviction was not established, within the requirements of the adjudicated cases. The defendant was bound to show an eviction or an actual ouster by a paramount lawful title. Parkinson v. Sherman, 74 [75] N.Y. 88, 93, 30 Am.Rep. 268, and cases cited.
"While an eviction may undoubtedly be worked without resort to physical force or legal process (Home Life Ins. Co. v. Sherman, 46 N.Y. 370), an examination of the record fails to show that the defendant yielded possession of the premises under any of the circumstances which the courts have held sufficient disturbance of quiet enjoyment to constitute eviction. The covenant for quiet enjoyment goes only to the possession, not to the title. St. John v. Palmer, 5 Hill, 599; Fowler v. Poling, 6 Barb. 165.
"Mere apprehension of eviction created in a tenant's mind by a judgment of foreclosure under a mortgage prior to his lease is not legally sufficient to warrant him in fleeing from the demised premises and in claiming damages as in case of actual ouster. Change of title to the leased premises is not of itself necessarily inconsistent with a tenant's peaceable possession. No more than a bare transfer of title was shown at the trial of this action. It does not appear but the defendant might have retained his possession unmolested until the expiration of his term. In a new action brought by the defendant against the plaintiff for breach of his covenant, it might, perhaps, be established that there was an actual eviction or ouster of possession; but the record, which is the sole guide for this court, does not disclose the fact. Even if it be assumed that the title and right to possession were asserted against the defendant at the time the referee's deed was delivered to the purchaser, it is impossible to determine the amount of the defendant's damage, on the theory that the measure of damages is the value of the unexpired term, less the rent reserved in the lease (Mack v. Patchin, 42 N.Y. 167,1 Am.Rep. 506), for the reason that it nowhere appears when the deed was delivered, and therefore the length of the unexpired term cannot be ascertained. Until the deed was delivered, the title did not pass out of the defendant's lessor (Mitchell v. Bartlett, supra), and no paramount title could have been asserted against the defendant or recognized by him."
To hold that a tenant may voluntarily abandon the premises without actual ouster, and maintain an action for damages for breach of the covenant, in this state, would conflict with the settled rules above shown, to the effect that a foreclosure of a mortgage lien, without making a tenant in possession a party, does not terminate the lease nor cut off the tenant's equity of redemption, and the further rule, stated in the Atler-Erskine, Jones-Paul, and Eustis-Cowherd Cases, to the effect that a mere demand for possession by the holder of the paramount title, acquired after the lease, is not eviction entitling the tenant to sue for damages.
I think the Texas rule is just, and is sustained by reason. At the time Davidson filed his suit to foreclose, Avery's possession of the premises gave him notice of the right under which the tenant held. The landlord had the right to presume, from Davidson's failure to make Avery a party defendant, that he would be satisfied to accept Avery as a tenant. In any event, no duty rested upon the landlord to interplead his tenant for Davidson's benefit, if, indeed, it had the right to do so. Having failed to exercise his right to make the Avery Company a party, and evict it by legal process, and by judgment terminate the lease, Davidson should not be permitted to repossess the premises under an agreement with the tenant only, to the injury of the landlord.
It must be further admitted that Davidson, by a suit, could have eventually evicted Avery Sons; but it is not alleged that such suit had been filed, or that Davidson even threatened to sue. It may be inferred, from the fact of Davidson's failure to make Avery Sons a party to the foreclosure proceedings that he never really intended to oust appellee, and that his demand for possession was for the purpose of laying a predicate to raise the rent. Moreover, if he had sued, the Avery Company could have interpleaded the appellant, the landlord, and it is a matter of common knowledge that many moons might have waxed and waned ere there would have been an eviction by legal process. By refusing to voluntarily abandon the premises, Avery Sons could have cast the burden, expense, and hazard of defending the suit upon its landlord. As long as Avery Sons had possession, it was not damaged. "Damages must be certain as to their existence." 17 C. J. 754, §§ 87, 88.
By voluntarily surrendering possession an unascertained and indefinite time before it could have been forced to vacate, Avery Sons has invited, accelerated, and enhanced its damages, which precludes recovery. In any event, eviction by legal process or force was the only way in which the appellee could have ascertained the amount of its damages, or the date from which they must be computed. Appellee should not be permitted to manufacture a cause of action and increase the amount of his damages against the *Page 171 appellant by an agreement with Davidson. I think the damages are too uncertain. 1 Sutherland on Damages (4th Ed.) § 53, says:
"Damages must be certain, both in their nature and in respect to the cause from which they proceed."
And in the note to this text it is said:
"To entitle plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their accruing as amounts to a certainty."
This the petition fails to allege, and, before the court could properly overrule the demurrer to it, he must presume that Davidson would not have accepted Avery as a tenant, would not consent to make a new lease, and would sue and succeed in ousting Avery at once. The court could not reasonably so presume, from the facts alleged.
For the reasons stated, I think the judgment should be reversed, with instructions to the trial court to sustain the general demurrer to the petition.