32 App. D.C. 90 | D.C. Cir. | 1908
delivered the opinion of the Court:
At the close of the court’s charge to the jury the defendant excepted to each part thereof “on the ground that the same was contrary to law.” This exception was clearly too general to avail the defendant here. He should have stated the specific-grounds for his exceptions, and thereby given the trial court an opportunity to pass upon them. If parties are to be permitted to avail themselves of such general exceptions, it is-apparent that a reversal of a case may he asked on grounds nor. suggested to or considered hy the trial court. This question has so recently been adverted to that it is not necessary to-pursue it further here. McDermott v. Severe, 202 U. S. 600, 50 L. ed. 1162, 26 Sup. Ct. Rep. 709, affirming 25 App. D. C. 276; Brown v. Savings Bank, 28 App. D. C. 353; District of Columbia v. Duryee, 29 App. D. C. 327, 10 A. & E. Ann. Cas. 675.
The appellant specifies as error the refusal of the trial court to instruct the jury “that if, upon all the evidence, they believed that the goods taken by the defendant’s employees were part of the goods received by the plaintiff from the defendant under the contract mentioned in the testimony, and that at the time of such taking the plaintiff had paid under said contract not more than $56, and that, in entering the plaintiff’s house and' in the taking and removal therefrom of said goods by the defendant’s employees, they had used only such force as was reasonable and necessary, the verdict should be for the defendant.”'
In the early case of Wood v. Manley, 11 Ad. & El. 34, the plaintiff sold a quantity of hay then on his land to the defendant with license to enter and take the same. Subsequently plaintiff served upon defendant a written notice not to enter or commit any trespass on plaintiff’s premises. The plaintiff having locked his gate, the defendant broke open the same, entered, and carried away the hay. Lord Denman, Ch. J\, in passing upon the case, said: “Mr. Crowder’s argument goes this length; That, if I sell goods to a party who is, by the terms of the sale, to be permitted to come and take them, and he pays me, I may afterwards refuse to let him take them. The law countenances nothing so absurd as this; a license thus given and acted upon is irrevocable.”
Hodgeden v. Hubbard, 18 Vt. 504, 46 Am. Dec. 167, was an action for assault and battery brought by one who had fraudulently obtained possession of certain personal property, and from whom such property had been forcibly retaken by agents of the vendor. The court said: “Whoever is guilty of a breach of the peace, or of doing unnecessary violence to the person of another, although it may be in the assertion of an unquestioned and undoubted right, is liable to be prosecuted therefor. But the fraudulent possessor is not the protector of the public interest. * * * The plaintiff had no lawful possession, nor any right to resist the attempt of the defendants to regain the property, of which he had unlawfully and fraudulently obtained the possession. By drawing his knife he became the aggressor, inasmuch as he had no right thus to protect his fraudulent attempt to acquire the stove, and the possession of the same, and
In Walsh v. Taylor, 39 Md. 592, the facts were quite similar to the facts in this case. The court said: “The contract, the construction of which was for the court, plainly gave the defendant an irrevocable license, or, rather, a license coupled with an interest; and, as such, the plaintiff could not withdraw from it, and hold the defendant as a trespasser for doing what, she had agreed he might do with impunity.”
Lambert v. Robinson, 162 Mass. 34, 44 Am. St. Rep. 326, 37 N. E. 753, was an action in tort for entering and breaking plaintiff’s close, and for assault. The plaintiff was in possession of certain articles of household furniture under an agreement the terms of which were similar to the terms of the agreement in the present case. The acts complained of were committed by the defendants in retaking the furniture. The court ruled that the defendants having a right to enter and remove the furniture were entitled to use such force as was reasonably necessary, and that they were only liable in case they used excessive force; and “that a person who has a right to enter upon the land of another and there do an act may use what force is required for the purpose, without being liable to an action. If he commits a breach of the peace, he is liable to the commonwealth. If he uses excessive force, he is liable to a personal action for an assault.”
To the same effect are White v. Elwell, 48 Me. 360, 77 Am. Dec. 231, and Willoughby v. Northeastern R. Co. 32 S. C. 410, 11 S. E. 339.
Jones, in his treatise on Landlord-& ■ Tenant, at paragraph 558, says: “It may be stated as a general rule that, though an entry by force might subject a landlord to penalties for a breach of the law criminally, it confers no right of action on the tenant thus holding without any right of possession.” (¶ 561.) “The Colorado statute takes away the right that existed at common law to make entry by force, although the right to possession may exist. Yet a license reserved in the lease to make such an
In this case the plaintiff authorized the defendant to retake the goods in the plaintiff’s possession upon a breach of the conditions of the contract. If the jury should find that a breach of the contract had occurred, and that the defendant used only such force as was reasonably necessary in overcoming the resistance the plaintiff thus wrongfully interposed, the plaintiff is not entitled to recover in this action. If, on the other hand, the jury should determine that there had been no breach of the terms of the contract, and that the plaintiff had paid for the furniture, then the defendant was a trespasser and liable to respond in damages.
Such contracts are burdensome and often oppressive, but, in the absence of fraud, the vendee is himself responsible for-the situation, for he signed the contract. The liability to criminal prosecution and the certainty of being required to respond in damages for an abuse of the license thus obtained, will deter vendors from the use of force.
The defendant was entitled to the instruction requested, and therefore the judgment must be reversed, with costs, and the case remanded for a new trial. Reversed.