Chandler v. Allison
10 Mich. 460
Mich.
1862
Check Treatment

Lead Opinion

Oampbebb J.:

Plaintiff in error was sued in trespass by defendant in error, for destroying- a store occupied by the latter, whereby the latter was disturbed in his possession, prevented from carrying on his business as a silver smith, ejected from the premises, and deprived of the use and benefit of the store.

It appears from the evidence that plaintiff in error was Allison’s landlord, and was desirous of rebuilding, and had, previous to the trespass, requested him to vacate the premises. The declaration does not allude to any such relation, but it was set up in the plea with matters relied on by way of excuse and defense. The questions before us all arise upon the reception or rejection of testimony.

Allison was permitted, under exception, to show the amount and value of certain repairs made by him before the trespass; and this is claimed to have been erroneously allowed; The declaration being entirely silent concerning any tenancy, makes out no other case than would have been set up against a stranger. Such an injury as is complained of does not spring from any infringement of rights arising, out of contract, and proof of any such damages is not therefore pertinent to the issue as framed. The injury declared upon is to an existing possession, and how or at what expense the property was put in its then condition, in no way affects the condition itself. The evidence was we think improperly received.

*474Exception is also taken to the admission of testimony-showing that certain portions of the building were under-let to Gates and ileffron for rents which were named. It appeared that Allison rented the whole building, including their apartments, for a certain yearly rate, and only occupied a portion for his own business. A material inquiry in regard to his own injury from the ouster would be whether the premises occupied by him were held at an advantageous rate — and whether therefore his rights were worth anything. The evidence admitted went to show precisely what his own portion of the building cost him. This is an essential inquiry, and necessary to determine the value of the leasehold. This testimony was we think properly received.

Objection was also made to the reception of evidence showing that, after the first attempt on the property, and before its final demolition, repairs were made to restore the first injury. The declaration is broad enough to cover the entire transactions, and those repairs were the necessary means of counteracting the first trespass. The cost of restoring the property to its former condition, is, in a case like the present, where the party had not been actually ousted, and they Avere made to render it habitable, a very obvious measure of a principal branch of damages. We see no ground on which this evidence should have been excluded.

The Court below allowed Allison to show that he had hired another store, which was the best he could obtain, and also that it was inferior as a business stand for his business to the store out of which he was driven by the trespass; and both of these portions of evidence it is claimed should have been excluded, partly as not admissible at all, and partly as not covered by the declaration.

It has always been considered incumbent upon any person subjected to injury to use such means as are reasonably in his power to make the evil consequences as *475light as possible. Under what circumstances, if any, such efforts are not required it is unnecessary to inquire. Where such efforts are made, and the injured party succeeds to any extent in reducing his actual damages, his claim for redress must be reduced accordingly. It can hardly be denied that had Allison found an equally eligible stand at an equal rent, he would have suffered less pecuniary injury than by having his business entirely broken up. Whether he would have been compelled or not to seek such a place, yet, having sought and found it, his damages would certainly have been reduced. And there seems no good reason why the actual obtaining of another store, as good as could be had, would not have a similar effect in showing the actual damage suffered. The evidence tends to lessen and not to increase the damages; and, while it would usually be introduced by way of defense, there is no reason why the plaintiff should be debarred from showing the true state of the case. How far such testimony could be made available on either side, without encountering the difficulties of speculative damages, must depend upon other facts. But it certainly serves an important purpose in explaining the true condition of affairs, and placing the jury where they can better comprehend it. And, in all those cases where practically the verdict must be to a certain extent a matter of opinion as to the amount of injury, the jury should have the' facts brought before them as clearly as possible.

The principal objection to allowing this evidence was based upon the form of the declaration. The damages arising from an interruption of business are unquestionably the natural result of such an injury as is complained of, but it is claimed they are not a necessary result, and should therefore be alleged. It is undoubtedly true that such damages as are not the necessary results of a trespass must be alleged. But in the case before us they are .specially alleged, with as much particularity as can be *476found in the precedents. The first count avers that the store was rendered uninhabitable, and that the plaintiff below was, np to the commencement of suit, hindered and prevented from earying on his business as' a merchant engaged in selling watches, jewelry and silverware. The second count also charges a continued removal and ouster, whereby he was during 'the whole period deprived of the use and benefit of his store. Both of these counts point out the deprivation of the use and benefit of the'store as the special grievance and ground of damage, and the first count is specific as to the kind of business which was interrupted. Under the first count there can he’ no sound objection to the testimony. It goes directly to the hindrance to his business, and shows a partial interruption, which would have been total had no other building been attainable.. The declaration is broad enough to cover a total interruption, and certainly will permit any qualification of such a total loss. There was no error in receiving this proof.

The remaining errors assigned refer to the rejection by the Court of certain questions proposed by Chandler on the cross-examination of Allison, who was a witness on his own behalf. He was asked whether prior to the trespass Chandler did not offer to give him another store free of rent, if he would remove without making any difficulty. This question was ruled out, and, we think properly. It would not have been pertinent for any purpose. The question of right to the possession could not be affected by any offers of compromise, or offers to buy off Allison, if they were not accepted. Offers not accepted, whether liberal or the reverse, cannot change the legal rights of either party.

Allison w.as also asked on cross-examinatiort two questions, as to whether in the spring of 1860, and also whether between the twentieth of February and the first of May 1860, he did not have conversations with Chandler in which the latter said he might rebuild the store, and that he *477should rebuild it if Mr. Joy built upon his adjoining property. These questions were ruled out.

We think both of them were admissible. The principal point in controversy was whether Allison had an unqualified present interest as a tenant of Chandler. That he was a tenant was conceded, and the only point in issue on that subject was whether, under the terms of his holding, Chandler had a right to require him to leave, in order to rebuild upon the premises. The questions put to the witness were aimed at ascertaining the precise terms of the letting. They were designed to determine the real character of the transaction in issue. They did not relate to matters in avoidance of it, and, without the information they called for, it could not be presented in its true light. It is difficult to perceive any principle upon which such questions can be. held improper on cross-examination. The only object of this, process is to elicit the whole truth concerning transactions which may be supposed to have been only partially explained, and where the whole truth would present them in a different light. Whenever an entire transaction is in issue, evidence which conceals a part of it is defective, and does not comply with the primary obligation of the oath, which is designed to elicit the whole truth. If the witness were, as he always may be, requested to state what he knows about it, he would not do his duty by designedly stopping short of it. Any question which fills up his omissions, whether designed or accidental, is legitimate and proper on cross-examination. When the answers are given the nature and extent of the transaction becomes known from a comparison of the whole, and each fact material to a comprehension of the rest is equally important and pertinent. A party cannot glean out certain parts, which alone would make out a false account, and save his own witness from tlie sifting- process by which only those omissions can be detected. There could be no such thing as cross-examination if such a *478course were allowed. No one could expose a fraudulei witness for his dishonest concealments; and every one wb knew of such practices would be driven to the necessity of calling, in his own behalf, an adverse witness to shov his own concealments, whom, if perjured, he 'could no; impeach. The absurdity of such a process is too plain t need pointing out. No one can be compelled to mafc his adversary’s witness his own to explain or fill up ; transaction he has partially explained already. The Oour erred in refusing to permit these questions to be put t< the witness.

The judgment must be reversed, with costs, and a nev< trial granted.

Manning and Ohristiancy JJ. concurred.



Concurrence Opinion

Martin Ch. J.:

I concur with my brother Campbell that the judgment should be reversed. Upon the subject of the admissibility of the cross-examination of Allison, respecting his interest and the terms of his holding, I have no doubt but thal the questions were proper, as they related to facts and circumstances connected with the matters stated in hi< direct examination, and to no new matter touching the merits of the case. They related to the terms and conditions of the holding, respecting which Allison had already testified; and are admissible under the rule of The People v. Horton, Dewey v. Campau, The Phil. & T. R. R. Co. v. Simpson, 14 Pet. 448, and Johnson v. Jones (reaffirming the rule), 1 Blade, 209.

Judgment reversed.