51 Mich. 263 | Mich. | 1883
For the purpose of understanding this controversy it will be necessary to mention four several store buildings in the city of Jackson, but it will save words to identify them.by numbers. The first is a building on the north side of Main street, and formerly owned by Douglass Gibson; and the second, a building nearly opposite, and belonging to George I. and Jacob IL Smalley; the third, a store contained in the block put up by Allen Bennett in 1881; and tho. fourth, a double store on the corner of Jackson and Pearl streets.
Prior to December, 1880, the defendants occupied No. one as tenants of Mr. Gibson; the lease was to expire March 14, 1881. The plaintiffs occupied No. two, nearly opposite, under a lease which was soon to expire. Each concern carried on hardware business.
In the winter of 1881 Allen Bennett commenced putting up his block, and represented that he would have it ready for occupation by the 15th of March, and the defendants engaged the store in it mentioned as No. three. The defendants expected it would be ready in time for them to transfer their stock to it at or about the close of their term at No. ■one. But the construction of the block lagged, and the store No. 3 was not made ready for occupation until the 28th of September. Early in the spring of 1881 the right of the plaintiffs to remain in No. 2 ceased, and their landlords, the Smalleys, insisted on possession. The defendants, not being able to use No. 3, still continued in No. 1, and so prevented the plaintiffs from getting in under their purchase. The Smalleys commenced summary proceedings against the plaintiffs to expel them from No. 2, and in April obtained judgment, and on the 30th the plaintiffs were compelled to cpiit. In these circumstances, and whilst the plaintiffs were threatened with expulsion from No. 2, the defendants requested permission to remain in No. 1 until No. 3 should be ready for them; but this was declined. The defendants’ term coming to a close, the plaintiffs received a deed from
In June the circuit court rendered judgment on the appeal against the defendants and issued a writ of restitution. But the defendants sued out a writ of error, and secured a stay of the process for possession.
At length the store No. 3 was finished and the defendants removed to it, and on the 28th of September abandoned their writ of error and submitted to the judgment of the circuit court and allowed the plaintiffs to enter.
The refusal of defendants to give possession at the end of their term, and their subsequent resistance to the plaintiffs’ proceedings to obtain it, were acts purely dilatory and devoid of merit. If they were in straits it was their own fault or misfortune. The course they took was merely a resort to Legal formalities to gain time and keep the plaintiffs out of a possession to which, in law, they were entitled, and which the defendants well knew was not open to legitimate dispute. This is admitted.
In November, 1881, the plaintiffs brought this action for damages and relied on the following statute:
“ The complainant obtaining restitution of any premises under the provisions of this chapter, shall be entitled to an action of trespass, or trespass on the case against the defendant, and may recover treble damages from the time of the forcible entry, or forcible detainer, or of the notice to quit or demand of possession, as the case may be, and all other damages to which he may be entitled.” Comp. L. ch. 211, “ General Provisions,” (6117,) Sec. 24.
The jury before whom the cause was tried found in favor of the plaintiffs, and assessed their damages at $1656, and having been requested to state in what way they found in regard to certain given items, they answered as follows: (1st) $200 for labor, etc., in removing to No. 4, and thence to
First. It is objected that the plaintiffs had no cause of action on the statute because they did not obtain restitution “ under the provisions of ” the “ chapter.” The position is that the store was voluntarily surrendered by the defendants and accepted by the plaintiffs-during the pendency of the proceedings.
This is not a satisfactory construction of the facts. The writ of error being dismissed, the judgment of the circuit court was operative and conclusive, and the means for executing it were ready. In the eye of the law the defendants had no choice, and their going out was not a discretionary surrender, but an act which supreme authority en joined and would immediately compel. They recognized the futility of resistance, and yielded to legal necessity. See Calvart v. Horsfall 4 Esp. 167; Stearns, Neal Act. ch. 8, and particularly p. 406.
Second. It is next contended that the action given by the statute is merely the common-law action of trespass for mesne profits, where nothing is recoverable except the damage caused by waste or some sort of special injury to the premises, the use or rental value and the costs incurred in the case to recover possession; and that the allowance by the court below of other heads of damage was, therefore, error.
It is futile to examine the propriety of the conclusion
Having reached the result that the limitation settled in suits for mesne profits does not apply, it remains to see whether any of the items specified in the verdict are dehors the remedy. The only thing which the defendants point out as unauthorized is the item for loss of profits in the way of trade. And the ground of objection alleged here is that
The statute gives lan action of trespass, or trespass on the case, and gives treble damages. Had nothing been said about trebling damages the elements of damage must certainly, have been referred to the principles which govern such actions. And it is not perceived that the provision for multiplying the single damages was designed to produce any change in that regard. It may be that this regulation was intended to exclude the kind of damages which are generally known as punitory, and on the principle of attaining the same end by trebling such other of the damages as are allowed to be trebled. But on this subject no decision is called for. The Supreme Court of Connecticut, in a case of the same nature, observed as follows: “ The party is to be indemnified for what he has actually suffered; and then all those circumstances which give character to the transaction are to be weighed and considered. Bracegirdle v. Orford 2 M. & S. 77; Churchill v. Watson 5 Day 140. Thus, whether the entry was violent or quiet, whether through malice or mistake, whether under color of right or without any pretense of title, are all proper subjects of consideration. And if a person, acting without pretense of right, would be subject to greater damages than one acting under a bona fide claim of title, surely such claim, accompanied by proof of actual title, should be submitted to the triers. For instance, if a tenant at sufferance was holding over, and the lessor ejected him by force, under an execution, which was technically defective, ought that man to recover the same damages as if he had been dispossessed, in the night season, by an armed ruffian, whoso object was plunder ? ” Bateman v. Goodyear 12 Conn. 575. There is much in these observations which is pertinent to the case before the Court. The. statement of the general principle is quite applicable. The plaintiffs were to be indemnified for what they had actually suffered. But, of course, thé principles relating to
It was recently held in California, where damages were demanded for a forcible entry and detainer, that no recovery could be had for bodily or mental pain or injury to credit, (Anderson v. Taylor 56 Cal. 131;) and the courts of New York regard the value of the use and occupation as something recoverable distinct from damages. But this view is founded on the express language of the Code. Cagger v. Lansing 64 N. Y. 417. It was intimated in Ilowser v. Melcher 40 Mich. 185, that there was room for question whether any damage for loss of profits could be recovered in this kind of action. On full consideration the ground of this doubt is entirely removed. "We think the adoption of the loss of profits as an increment of the damages was fully warranted by the decisions. Allison v. Chandler 11 Mich. 542; Tracy v. Butters 40 Mich. 406; Grand Rapids etc. R. R. Co. v. Heisel 47 Mich. 393; Gilbert v. Kennedy 22 Mich. 129; Shaw v. Hoffman 21 Mich. 151: 25 Mich. 167; Welch v. Ware 32 Mich. 80; Heiser v. Loomis 47 Mich. 19. And we are not satisfied that any error was committed in letting in either of the other items.
In Howser v. Melcher, before referred to, there was a special verdict, and a question arose on the effect of it. It found a given small amount expressly as damages, and further set forth what the jury had ascertained to be the amount of certain other claims, but without finding them as damages either specifically or by any general statement or designation. And it was decided that amounts not found as damages by the jury could not be trebled by the court under this statute. The present case raises no such question. The verdict is for damages in toto. The only special feature
Third. The defendants now make the pdint that neither count in the declaration is valid for the purpose of getting-treble damages under the statute, and Howser v. Melcher supra, and other authorities are cited.
It is a sufficient answer to observe that there is no charge of error to warrant the objection. The only assignment that relates to the matter is one which asserts that it was error to treble the rental value of the premises, as found by the jury. No intimation is given of any fault in the declaration, and the issue which results from the charge of error presents no question of that kind. But the Court is of opinion that if the point were duly assigned as error it could not he sustained. The reference to the statute is looked on as sufficient.
The objection that single and treble damages are not recoverable under one and the same count cannot be supported. The statute on which the action is based contemplates that they may. The recovery is regarded as single, and the mode of reaching the amount does not imply a necessity for more than one count. Osburn v. Lovell 36 Mich. 246, and Mooers v. Allen 2 Wend. 247, which are cited on this point, have no application ; they refer to the impropriety of a general finding where a count at common law giving single damages is joined with a count upon the statute giving
The charge to the jury was very fair and perspicuous, and if the result is exposed to any criticism, which we do not decide or intend to intimate, it is because the process of trebling was not more comprehensive. All the points of error insisted on have been examined, and no fault is discovered of which the defendants are entitled to complain.
The judgment must be affirmed with costs.