Lambert v. Breton

• Decision Date: 23 February 1929
• Citation: 144 A. 864
• Parties: LAMBERT v. BRETON.
• Court: Maine Supreme Court

144 A. 864

LAMBERT

v. BRETON.

Supreme Judicial Court of Maine.

Feb. 23, 1929.

Argued before WILSON, C. J., and PHILBROOK, DUNN, BARNES, and PATTANGALL, JJ.

Herbert E. Holmes, of Lewiston, for plaintiff.

Belleau & Belleau, of Lewiston, for defendant.

PHILBROOK, J. About the middle of February, 1927, the plaintiff became a tenant at will of the defendant in a building to be used as a cobbler's shop. Monthly rental of $35 was agreed upon. Rent for the balance of February was paid at the close of that month, and apparently, by tacit understanding of the parties, rent day was established as the last day of each month. The agreed rental was paid for the months of March, April, and May. During the week of July 4, the landlord called at the shop to collect the June rental. On being told by the tenant that he had not sufficient funds on hand to pay the rent in full, but would make part payment, the landlord replied that, if the tenant could not pay the whole sum, he should go to his attorney "and see that he would get it." A day or two later a deputy sheriff called, having a civil precept bearing date of July 7, 1927, containing an indebitatus assumpsit count as follows:

Lewiston, Maine, July 7, 1927.

Wilfred Lambert to Frldolln Breton, Dr. 1927, July 7. To balance due tor use and occupation of store at No. 325 on Lisbon Street in Lewiston, Me................................ $70 00

According to Lambert's testimony, the following colloquy took place between him and the deputy sheriff:

"He came into the shop about nine o'clock in the forenoon, said 'Hello' and I answered him. He says, 'I am sorry but I have got to lock the place up.' 'Now,' he says, 'if you want to you can give me your keys,' and he says, 'in doing so we wont have to put any locks on the outside of the store. It wont show you have been closed up by the sheriff.' Not knowing the law I gave him my keys, took my coat and went out. He locked the doors."

The officer's return upon his precept was that on July 7, 1927, he attached a chip, and a second return that on the same day he attached the stock and fixtures of the shoe-repairing shop.

Only one key was given to the deputy sheriff but the tenant had another key to the same door, and on the morning following the above incident he opened the shop and went about his work as usual.

On July 9, 1927, the same deputy sheriff called at the shop, having another writ dated July 9, 1927, containing the same indebitatus count as that found in the former precept, but with an omnibus count added, and on this second writ the return showed that on July 13, 1927, the officer attached "the shoe repairing shop" of Lambert. According to Lambert's testimony, the officer had no one with him when he first came on July 9. The following testimony of Lambert is taken from the record:

"That Saturday when he came to the store he was alone the first time. He ordered me out. Told me he was going to put the locks on. I told him I wouldn't go out and refused to go out; and we talked. Both of us got hot-headed a little and I don't remember the conversation but finally he went out and came back with a keeper."

The officer told Lambert that the keeper was going to stay and take possession of the place. About two hours later, the deputy came back and gave Lambert a written notice, signed by the attorneys for Breton, informing him that the action begun on July 7 was thereby discontinued. Lambert continued to work in the shop until a late hour that night. Nothing further happened until Tuesday morning, when Lambert came to the shop, intending to resume work, but found padlocks on both front and back doors. He went to see the attorneys for Breton, but obtained no satisfaction. The shop remained locked with the sheriff's lock until August 30, when certain persons who had mortgages on its contents were permitted to remove the same, and Lambert was permitted to remove his property, such as tools and stock which were exempt from attachment. No notice to quit was ever served on Lambert, but, after the padlocks were placed on the doors, he rented another shop in which to carry on his business.

On September 17, 1927, Lambert commenced the action at bar. Jury trial was begun, and at the close of plaintiff's testimony the presiding justice granted defendant's motion for a nonsuit. The case is before us on exceptions to that ruling.

The record does not disclose the grounds upon which motion for nonsuit was based, nor the reasons for granting the same as they existed in the mind of the presiding justice; hence a more general discussion of the case seems to be required.

By observing the allegations in the plaintiff's declaration, it will be seen that the action is for an abuse of legal process in a civil suit. It is a rule of law of very general recognition that an action will lie for an abuse of such process. Nix v. Goodhill, 95 Iowa, 282, 63 N. W. 701, 58 Am. St. Rep. 434. If process, either civil or criminal, is willfully made use of for a purpose not justified by the law, this is an abuse for which an action will lie. Cooley on Torts (2d Ed.) p. 220.

The general right to an action is not to be seriously questioned, but the more difficult question is, What is an abuse of process, so as to render it actionable? Before attempting to answer the question by definition, we should be careful to observe a distinction between suing out a writ and the improper use of the writ after it is issued. In Bartlett v. Christhilf, 69 Md. 219, 14 A. 518, the court said: "These are instances in which the writ regularly and properly sued out was perverted, abused and made an instrument of oppression. Either something not warranted by its...