29 W. Va. 765 | W. Va. | 1887
This is an action of trespass on the case brought in the Circuit Court of Ohio county, in July, 1876, by John Robrecht against Elijah Marling, Sr., to recover damages for breach of contract for the lease of a farm. The first count in the declaration is as follows : — “ John Robrecht complains of Elijah Marling, senior, who has been duly summoned to answer the said plaintiff of a plea of trespass on the case, for that heretofore, to wit, on the 1st day of April, 1875, the said plaintiff was lawfully possessed of a certain messuage and tenement in said county situated
The second count is similar to the first except that it al-lages, that the plaintiff in August, 1874, leased the said, premises of the defendant for the year commencing on the 1st day of April, 1875, and ending on the 1st day of April, 1876, and relying on the good faith of the defendant he expended large sums- &c., and after he had so leased and with the consent of the defendant had planted and sowed -wheat &c. This count does not allege, that the defendant himself dispossessed the plaintiff, but that he procured, employed and incited Silas W, Wharton to do so, and that said. Wharton did dispossess the' plaintiff. There was a general demurrer to the whole declaration, which was overruled, and the defendant pleaded, not guilty. The issue was tried by a jury; and on the 7th day of December, T877, a verdict, was rendered for the plaintiff for $1,500.00- damages. The defendant moved to set aside the verdict, on the ground,, that it was contrary to the evidence and was excessive. ■ The
The defendant took nine several bills of exceptions to the rulings of the court: the first five to the rejection of special pleas ;• — the sixth, which certifies all the evidence given by the plaintiff, to the refusal of the court to exclude the plaintiff’s evidence on the ground 'therein stated; — the seventh to the refusal of the court to permit a. supersedeas and super sedeas-bond in the chancery suit of John Robrecht v. Silas W. Wharton to be read in evidence on the part of the defendant; — the eighth to the refusal of. the court to permit the whole record in said chancery suit to be read in evidence in behalf of the defendant; — ’the ninth, which makes the sixth a part thereof, and certifies all the residue of the evidence, to the refusal of the court to set aside the verdict and grant a new trial.
To the judgment the defendant obtained a writ of error with supersedeas.
The first question is : Did the court err in overruling the demurrer to the declaration? The declaration contains two counts; and the demurrer was to the whole declaration, not to the declaration and each count. It is well settled, that, if there are two or more counts in a declaration, and there is a demurrer to the whole declaration, and either count is good, the demurrer should be overruled. (Roe v. Crutchfield, 1 H. & M. 361; Scott v. Leary, 34 Md. 339; Monell v. Golden, 13 Johns. 398; Sears v. Trowbridge, 15 Gray 184.) And if there be a declaration in covenant assigning different breaches, and there be a demurrer to the jvhole declaration, if any one of the breaches contains a cause of action, the demurrer will be overruled. (1 Ohitt. PI. 696, and cases cited.) In the first case the demurrer should be to the declaration and each count thereof; and in the second case to the declaration and each breach assigned. The same rule applies where the declaration consists of but one count, part of which is sufficient, and the residue is not, provided the matters alleged are divisible in their nature. (1 Chitt. Pl. 197.) Therefore, if a count in a declaration contains matter which •will sustain an action, and other matter, for which no recovery can be had under the rules of law, and there be a de
In the case before us the declaration contains two counts, and the demurrer is to the whole declaration; therefore, if a good cause of action is stated in either count, the demurrer was properly overruled; and if either count or both contain matter for which there should be no recovery, and yet either or both contain matter which will sustain an action, and for which a recovery should be had, there being no demurrrer to the bad .portion of such count, the demurrer was properly overruled. The action here is case ; but it will be seen by an inspection of the count, which we have copied, that no damage is claimed on account of the manner of depriving the plaintiff of the possession, but on accountof the consequences of the breach of contract of lease, and in such case the measure of damages is the same, as it would be, if lease had been a written one, and the action had been for the breach of contract. (Trull v. Granger, 8 N. Y. 115.) In that case where the landlord refused to give possession according to the contract, it was held, that the tenant might maintain his action for damages upon the implied agreement to yield x>ossession, or in tort for the violation of the duty arising from the relation of landlord and tenant, and that the measure of damages in either was the same.
What is the measure of damages in such cases ? If the plaintiff in this case has the correct idea, the measure of damages is not only all the damages, which are the natural result of depriving him of the possession, but also the value of the stock, farming materials, &c., which he may have purchased for the purpose of cultivating the land, the profits, which he could have made, and the losses which he may have suffered by the sale of his cattle, horses, sheep, swine, .wagons, farming materials, &c., which, he alleges in his declaration, he sold at public auction, because he was deprived of the possession of the farm. If he had no lease of the farm, of course he suffered no legal damage whatever. That was
(Trull v. Granger, 8 N. Y. 115; Cilley v. Hawkins, 48 Ill. 308; Adair v. Bogle, 20 Ia. 238; Newbrough v. Walker, 8 Gratt. 16.)
In 8 N. Y. 115, the court say : “The difference between the yearly value of the premises and the rent was the true measure of damages.” In 48 Ill. the court say: “It appears from the bill of exceptions, that plaintiff in error asked a number of questions in reference to what could have been made on the farm during the continuance of the term, and what was the damage in not getting the farm to cultivate, and the value of the teams &c. to have been furnished by the defendant in error and the use of the place for cultivation and pasturage &c. All of these questions were in their nature speculative and could not be answered, except upon supposing facts would exist, which might never occur. They would all depend upon a variety of circumstances, which might never exist, such as the season, the mode of culture and other contingencies, of the occurrence of which no one could tell. Had the evidence been admitted, it would have been based on mere conjecture, and the jury in considering it would have been compelled to proceed upon mere supposition. * * In such case the true inquiry is as to the value of the lease, at the time the breach occurred. Such terms necessarily have a market value like other estates and interests in real estate; and the inquiry should have been : What was its true worth? For how much could plaintiff in error have sold it to any one desiring to purchase ? Not how much any person might imagine could have been made by its enjoyment. * * * The court properly admitted evidence of the value of the .labor performed by plaintiffs in error in breaking ground, as from it they derived no benefit but sustained a loss. • They also had a right to show, that they had sustained other losses by incurring expense to carry out their part of the agreement under the lease.”
In Adair v. Bogle, 20 Ia., Dillon, Judge, said: “ The
In Newbrough v. Walker, 8 Gratt., it was held in an action of covenant for the failure of the defendant to deliver possession of a mill to plaintiff under a lease, that, the plaintiff not having sustained any special damages, he is entitled to recover only the difference between the rent contracted to be paid and a fair rent for the property at the-time it should have been delivered. A conjectural estimate of the profits, which might have been made, is no legitimate basis, upon which to fix the damages. In that case a verdict and
The demurrer to the declaration was properly overruled, because one of the counts and indeed both stated a cause of action. But, as we have seen, there was much in both counts laid as special ■ damages, to wit, what the plaintiff could have made in the year on the farm, the amount he had paid for stock &c. and the sacrifice of his property at the sale, that could not properly be recovered in the action. It is apparent from the record, that there is no proof, that the lease for a year was worth more than the rent reserved. There was no proof of special damages properly recoverable except the plowing of the fields and the sowing of the grain, the whole of which would not probably exceed $250.00. The proof, as to what the labor, seed &c., so expended and used, amounted to, is not clear; but enough appears from the record to show, that the verdict exceeded what the proper evidence admitted proved the plaintiff to be entitled to receive, by at least $1,000.00 and perhaps $1,250.00. I do not pretend to measure it precisely. But there was no objection to the admission of the improper evidence of speculative and other improper damages and no motion to exclude such evidence nor any instruction asked to the jury to disregard it. There was a motion to exclude all the evidence of the plowing because of a supposed variance between the proof and the declaration; but that motion was properly overruled, because there was no such variance, and further because there was some evidence to sustain the action. ' Now, the defendant having failed to demur to the parts of the counts alleging special damages not recoverable and failing to ex
If this is true, when there is no cause of action, it seems to me, where- a part of the declaration sets out a good cause of action, and another part alleges matter not recoverable, and there is a general verdict, and the court can clearly see, that the illegal evidence made the verdict excessive, it is error in the court to refuse to set aside the verdict and grant a new trial; and on writ of error, where the facts proved or evidence is all certified, if the appellate court can separate the evidence and clearly see, that the improper evidence has necessarily increased the verdict more than $100.00 over what it ought to be, said Court should reverse the judgment and set aside the verdict though there was no demurrer to the declaration, and no exception was taken to the illegal evidence or motion to exclude it, and no instruction asked to the jury to disregard it. We are not without express Virginian authority on this subject.
In Roe v. Crutchfield, 1 H. & M. 361, it was held, that if there be several counts in a declaration, and any one of them be good, though all the rest be faulty, a general demurrer to the declaration should be overruled. In such a case, if a writ of inquiry be executed after overruling the demurrer, the defendant may nevertheless object to the admission of evidence applying only to the faulty counts, and tender a bill of exceptions or demurrer to the evidence, or may apply to the court to instruct the jury to disregard such faulty counts. But in that case it was further held, that, if no such
In that case, it seems, there was no motion to set aside, because referring to the steps, that might have been taken, Judge Tucker says : u But the defendant having neglected to take any of these steps, upon the execution of the wr|t of inquiry we may say in the words of the court of K. B. non constat, but that the plaintiff did prove the count for money had and received by other evidence than that, which he offered to prove the ñrst count; and since that is the case the act of jeofails (L. V. 1,794, c. 76, s. 38) does in my opinion make the verdict good.” '
In Newbrough v. Walker, 8 Gratt. 16, there was a motion to set aside the verdict, because it was excessive; and though there was no exception, as far as it appears, to the evidence or instruction to disregard it asked for, the court disregarded the improper evidence and set the verdict aside as excessive. "We are therefore authorized to add to what was held in Roe v. Crutchfield, 1 H. & M.; but if no such steps as objecting to the evidence or demurring thereto or asking the court to instruct the jury to disregard it, be taken by the defendant, and he moves to set aside the verdict, and the evidence or facts proved are certified, and the appellate court can clearly see from such evidence or facts that by such illegal evidence injustice has been done to the plaintiff in error, and by such evidence the verdict has been increased, and such excess so made be within the jurisdiction of the court, the judgment will be reversed for such cause, and the verdict set aside and a new trial granted. Such is this case; and for the reasons we have stated, because the illegal evidence increased the verdict more than $1,000.00 beyond what it ought to have been, the judgment will have to be reversed, the verdict of the jury set aside, and a new trial granted.
The first bill of exceptions is to rejecting a plea in abatement, which set up the fact of a pending suit. I think, this was not a good plea; but whether it was or not, it was properly rejected, as it was tendered too late. It should have been filed at rules, if at all. (Flesher v. Hassler, supra 404.)
Bills of exceptions 2, 3, 4 and 5 are to the rejection of four
Exception No. 6 has already been disposed of. No. 7 was to the refusal of the court to permit the appeal and superse-deas granted in Robrecht v. Wharton with the superdeas-bond to be given in evidence on the part of the defendant. The court properly refused this evidence. No plea was filed or could have been filed, under. which it would have been proper evidence. It had nothing to do with the action against Marling.
Bill of exceptions No. 8 was to the refusal of the court to permit the whole record in Robrecht v. Marling to be given in evidence on behalf of the defendant. This was not error for reasons already stated. To contradict Robrecht’s testimony the court admitted in evidence such portions of said record, as shows, that Robrecht had admitted, that Marling had nothing to do with dispossessing him of his farm, and that the trespass was by Wharton alone.
Bill of exceptions No. 9 was to the refusal to set aside the verdict [and grant a new trial and has already been fully considered.
For the reasons stated the judgment of the Circuit Court is reversed, the verdict of the jury set aside, and a new trial granted.
ReveRsed. Remanded.