Shaw v. Hoffman, 21 Mich. 151

Shaw v. Hoffman

21 Mich. 151 | Mich. | 1870

Christiancy J.

The first question (in logical order) presented by this case, is whether the statute, (Compiled Laws, §4717), giving the action of trespass and treble damages under the circumstances there mentioned, will authorize a mere tenant for years to recover such treble damages against his landlord for the wrongful and forcible entry, etc., or, whether the statute remedy is intended to be confined to the owner of a freehold interest, like the first section of the same chapter, which confines the remedy to the “owner.”—Achey v. Hull, 7 Mich., 423.

This section (4717) is substantially copied from th.e New York Revised Statutes, vol. 2, title 6, sec. 4, omitting only the word “disseized,” as used in the New York statute.

Under the statute of New York, and that of 8 Henry 6, ch. 9, sec. 6, from which it is substantially borrowed, it was well settled that none but the owner of the freehold was entitled to this statute remedy.—Willard v. Warren, 17 Wend., 257.

*156But, considering the nature of the injury to be remedied, there would seem to be the same grounds of justice and sound policy for giving the same remedy to a tenant for years, or any other term less than a freehold. Our statute seems to have purposely omitted the term "dis-seized,” and the remaining language will apply with sufficient accuracy to the lessee for a term of years or any shorter period; and these being equally within the mischief I think the statute should be construed as applicable to such cases, as well as to freehold estates. This seems to have been taken for granted (though not decided) in Thayer v. Sherlock, Mich., 173, where the declaration merely alleged that the "plaintiff being in possession,” etc., without averring him to be the owner or possessed of a freehold.

If, however, there was no evidence in the case tending to show any thing more than is stated in the bill of exceptions, another important question might perhaps be raised by the assignment of error for rendering judgment for three times the damages found by the verdict, viz: whether there was any evidence tending to show such acts or threats of personal violence, or riotous conduct, etc., calculated to excite terror or alarm in the occupant, as have generally been held necessary under the New York statute ‘and that of 3 H. 6 referred to, and how far our statute should receive the same interpretation. See Willard v. Warner, above cited, and authorities there referred to. But as the bill does not appear to have been drawn with special reference to this question, and it was not argued before us, we give no opinion upon it.

The next question arises upon the motion of the defendant below to strike out the testimony of the plaintiff showing what he paid for the board of his horses after the defendant had entered and torn down the barn where they *157had been kept. The record does not show whether any, or what, reason was given for the motion; and it is urged that we cannot therefore reverse the judgment for any error in denying it.

There are doubtless cases where a party would not be entitled to any benefit by assignment of error for denying a motion for which no ground was stated. But they are cases where the ground would not naturally and obviously occur to the courts without explanation. But courts must always be supposed to understand the nature and extent of the issue, presented by the pleadings in the cases they are trying. And if it appear that the evidence moved to be stricken out could not, in any view of the case, be pertinent to the issue, or the case set out in the pleadings, the reason for the motion must be sufficiently apparent; and it cannot be properly overruled without, at 'least, calling upon counsel to state his reasons for the motion, and the neglect of the counsel to do so under such a call. The ground of error relied upon here is that no special damages are alleged in the declaration, and that the expenses of boarding the horses at another stable are not the necessary consequence of the trespass complained of in the declaration, under the facts there stated, and should therefore have been alleged specially. While it is urged, on the other hand, that the expenses in question were the natural result of the trespass, the entry and eviction complained of, and therefore inferred by the law. And this view is sought to be sustained by the authority of Chandler v. Allison, 10 Mich., 461. But in the case cited, the damages were specially alleged in the first count of the declaration, which was for entering and injuring the plaintiff’s store so as to render it untenable; and in alleging the damages, it was, among other things, averred, that the plaintiff “was during all that time hindered and prevented from carrying *158on his lawful and necessary business, as a merchant in said city, engaged in sellipg watches, jewelry and silverware.” And while it was held that “such damages as are not the necessary result of the trespass must be alleged, it was also held that this was an allegation sufficiently specific to entitle the plaintiff to prove damages from interruption of his business, which must have been a total suspension, if he could not have obtained another place,” etc.

The distinction between those damages which must be specially alleged, and those which may be recovered under the general allegation of damages, is not between such as are, and such as are not, the natural result of the trespass. All damages, however specially alleged, must, to authorize a recovery, be the natural result of the acts complained of.—1 Chitty’s Pl. (7th Amer. ed.) 428 (b), 428 (c). But the_ only damages which can be recovered under the general allegation, without stating their particular nature, and how they arose, are those which the law implies or presumes from the acts or matters set forth in the declaration, as the grounds of the plaintiff’s claim; and these are such only as necessarily arise from the matters alleged under the circumstances stated in the declaration.

Had the declaration in this case averred that the plaintiff was engaged in the business of a livery stable keeper, and using the barn for a livery and feed stable, and that his business was interrupted by the trespass and ejectment, then the law might have presumed the continued suspension of his business, unless he could procure some other stable for the business, or get his horses kept elsewhere, and the actual expenses necessarily incurred in this way might have been legitimate damages under his declaration.

But the declaration avers nothing of this kind, and gives no notice to the defendant of such a claim. It *159mentions no horses, states no particular purpose for which the barn was occupied, nor any business of the plaintiff connected with it. It avers only the forcible entry of the defendant, the wrongful ejection of the plaintiff, and the keeping him out by force, etc. What damages necessarily result from these acts alone, we need not here particularly define; but certainly the expense of boarding horses or hiring them kept elsewhere cannot be presumed from the case stated in the declaration, which is wholly silent in reference to them, and we know they are not generally the necessary result of ejecting a party from a barn; whether they become in any case the necessary result, must depend upon other facts not stated in this declaration.

We think, therefore, these particular damages could not properly be proved under this declaration, and that the motion to strike out should have been granted.

As there must 'be a new trial on this ground, it is unnecessary to notice the error assigned upon the alleged ambiguity of the charge, which will not be likely to be repeated upon another trial.

Tbe judgment must be reversed with costs, and a new trial awarded.

The other Justices concurred.