Jolly v. Single

16 Wis. 280 | Wis. | 1862

By the Court,

Paine, J.

There can be no doubt that the complaint in this case states facts sufficient to constitute a cause of action for a trespass upon the plaintiff’s possession. It avers that the mill was leased by the defendant to Dodge & Judson who toot possession and performed the contract on their part, that with the written consent of the defendant they sub-let it to the plaintiff and James H. Judson, under an agreement that the latter were to saw the logs on which the defendant had a mortgage; that they took possession, performed everything to be performed by them, and that James H. Judson assigned his interest to the plaintiff with the consent of the defendant, and that while the plaintiff was in possession fulfilling the contract, the defendant entered with force and carried away part of the machinery so as to prevent the running of the mill. This clearly stages a cause of action for trespass and it was evidently so intended, for the complaint then proceeded to aver the damages specially, and asked judgment for the amount. It is true it contained other allegations, made with the view of obtaining ari. injunction, and it was urged here that the complaint could only be regarded as seeking equitable relief and consequently that a judgment for damages merely, could not be sustained under it. But although it did seek equitable relief, it is quite as true that it sought a recovery of damages. And being sufficient to sustain such a recovery, the judgment cannot be disturbed for the reason that it is for damages only, not including the entire relief asked for. Whether or not there was a misjoinder of causes of action, we do not determine, as no such question was raised below.

The only questions presented here, arise upon the instr uc-tions asked by the defendant and refused by the court, and upon the sufficiency of the verdict. The first instruction asked for was too broad. It should in view of the evidence have been qualified. For though the case does not show the original lease, nor what would have been a ground of forfeiture, yet even assuming that any neglect by the lessees to comply with its requirements might work a forfeiture, still the lessor could have waived it. And if after such waiver he had committed a trespass upon the lessee, he would be liable for the damages. Take for illustration, the agreement by the lessees, to run the mill night and day. There was evidence tending to show that it was not run night and day. Bat it was also shown, that this was with the full knowledge of the defendant, and that he continued afterwards to receive the rent. There was evidence, also to the effect that the defendant did not at the time he attempted to take possession, insist on this as any ground of forfeiture, but refused to allow the plaintiff to go and saw the logs, because the latter would not turn out the lumber to him. Upon such evidence the jury might well have found that although some ground of forfeiture had once existed, jet that it had been waived. And if so the plaintiff could still recover damages for the trespass. The instruction was therefore too broad.

The second instruction asked for was as follows: “ That if the plaintiff kept all the covenants agreed to by him in writing, yet if-he sawed other logs than those covered by the license of the defendant, it is s\rch a violation of the contract as would authorize the defendant to oust the plaintiff.”

We see no evidence tending to show that the plaintiff sawed any other logs, and if there was none, the instruction was properly refused, for the reason that there was no evidence raising any such question. Rut even if there had been such evidence the instruction is incorrect. The defendant had leased the mill to Dodge & Judson. The lease itself does not appear in evidence, but taking it as set forth in the defendant’s answer, the rights of the lessees, were not limited to the sawing of any particular logs. The defendant consented in writing that they might sub-let the premises, for no other construction can be given to the consent signed by him, the assignees undertaking to saw the logs on which he had a mortgage. There is nothing in this, that by any fair construction should be held to restrict their rights to the sawing of those logs only, any more than the rights of the original lessees were so restricted.

The third, fourth and fifth instructions asked were erroneous, in assuming that the interest of the plaintiff was that of a licensee merely. His interest was that of a lessee. The defendant leased the property to Dodge & Judson. It was provided that they should not under-let without his consent. But he did consent, and the plaintiff and James JET. Judson in pursuance of that consent, leased from Dodge & Judson. But the fact that such consent was necessary to .the validity of such sub-letting, by no means converts such sub-lessees into mere licensees whose rights are revocable at the pleasure of the original lessor. On the contrary, having become lessees by his consent in pursuance of the original lease, their rights are as little liable to be revoked by him, so long as they comply with the terms of the lease, as were those of the original lessees.

The defendant was not entitled to the sixth instruction for reason that it limited the plaintiff’s right of damages to the mere “ cost of restoring the mill to running order, or the value of the property carried away.” Such a rule applied to such a case would be grossly unjust. A party is in possession of a mill, and has hired a large number of men to work it. He has on hand a large number of logs, which he is entitled to saw, and in sawing which he can earn a certain sum each day over and above all expenses. A trespasser for the very purpose of stopping the mill, goes and takes away some portion of the machinery, not of very great value, but of such a nature the mill must stop without it. The court was asked to confine the damages in such a case, to the value of the property taken or the cost of restoring it, leaving the plaintiff to pay all his men, loose all their time and the use of the mill, during the time it necessarily lay idle by reason of the trespass. It is only necessary here to say, this is not the correct rule. Shepherd vs. The Gas Company, 15 Wis., 318; Griffin vs. Colver, 16 N. Y., 489.

The verdict was sufficient as originally rendered by the jury, to sustain the judgment. First there was a general finding in favor of the plaintiff, and then the damages were assessed at three hundred dollars. This is sufficient. Everit vs. The Walworth Co. Bank, 13 Wis., 419. The finding that the plaintiff was entitled to the possession, may have been superfluous, but it did not vitiate the rest.. And whether it was stricken out or not by the court, was immaterial. The evidence was such as warranted the verdict, and there was no error in denying a new trial.

The judgment is affirmed, with costs.