Oliver v. Bredl , 25 Pa. Super. 653 ( 1904 )

Opinion by

Smith, J.,

The questions involved in this case require but little discussion. The payment of rent was not under such duress or coercion as to deprive it of the character of a voluntary payment, made with full knowledge of all the circumstances affecting the obligation; and the protest made with the payment counted for nothing. Hence the claim to recover back any part of the rent thus paid is untenable. But the right to recover for the breach of the defendant’s covenant respecting the structure to be erected stands on a wholly different basis. Such a claim was not affected by the payment of rent. It is not material whether the covenant to pay rent and the covenant to erect the addition were dependent or independent, or whether the lessee might have defended against the demand for rent on the ground of nonperformance of the lessor’s covenant. The lessee was not bound to assert his 'right in this form. That performance of his covenant, by one party, bars recovery for nonperformance bjr the other, is a proposition totally without foundation in law. While, therefore, there could be no recovery of the rent paid, its payment was not, of itself, a waiver of the right to compensation for the lessor’s breach of covenant.

The measure of damages for a breach of contract is the difference between the actual performance and the performance contracted for; in the present case, the difference in rental value between the property as actually constructed and as the lessor agreed to construct it. The questions of fact were submitted to the jury with adequate instructions in relation to the alleged difference, and to the measure of damages arising from a breach of the lessor’s covenant. If the trial judge erred at all, it was in favor of the defendant, for the evidence respecting the lessor’s animus was quite sufficient to justify a verdict for exemplary damages. Nothing in the assignments of error requires further discussion, and they are all overruled.

Judgment affirmed.