Allison v. Chandler

• Decision Date: 20 October 1863
• Citation: 11 Mich. 542
• Court: Michigan Supreme Court
• Parties: John H. Allison v. Zachariah Chandler

11 Mich. 542

John H. Allison v. Zachariah Chandler

Supreme Court of Michigan

October 20, 1863

Heard July 14, 1863; July 15, 1863 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne Circuit, where Allison brought suit against Chandler for trespass in breaking into a store occupied by plaintiff in Detroit, and tearing off the roof, and committing other injuries by which it was rendered untenantable. The case was once before in the Supreme Court, and a full statement of the pleadings will be found in 10 Mich. Rep., 460. The prior judgment having been reversed, the following proceedings took place on the new trial.

The plaintiff being sworn as a witness, gave testimony tending to show that in August, 1860, the plaintiff was the tenant of the defendant, in store number 176 Jefferson avenue, Detroit, and had been for several years, and as such tenant was rightfully in the possession of said store, and entitled to the peaceable and quiet enjoyment thereof, until May 1st, 1861, under an agreement made February 1st, 1860; that about August 15th, 1860, the defendant caused the roof of said store to be torn off; that plaintiff repaired said roof; that a few days afterwards defendant again caused the roof to be torn off, and the gable end to be forced away and thrown down, and thus rendered the store entirely untenantable, and the plaintiff was in consequence forced to leave said store, and thereupon hired another store, the best he could obtain, but not nearly as good for his business, which consisted largely in repairing watches, making gold pens, and selling jewelry.

The counsel for the plaintiff then asked the witness how much the watch repairing business was worth a year? To which question the defendant objected as incompetent, and the court sustained said objection, and excluded said testimony, and plaintiff excepted.

The counsel for the plaintiff then asked the witness what was the extent or value of his whole business? This question was in like manner objected to and excluded, as were also the further questions, whether his business, during the year prior to the time when said store was torn down, was a profitable one?

And whether, after his removal to the new store, his business fell off, and if so, how much?

The witness then further testified, that the reasons why his new place of business, which he obtained, was not as good a place for business as the store from which he was ejected, were that his customers did not come to the new store, there was not so much of a thoroughfare by it, not one quarter of the travel, and he relied very much on chance custom, especially in the watch-repairing and other mechanical business.

The plaintiff, further to maintain the issue on his part, called as witnesses, S. V. R. Herrick, G. W. Gatch and Samuel Hittel, whose testimony tended to show, that the plaintiff was, on or about the 21st of August, 1860, rightfully in the possession of said store, under an agreement made between plaintiff and defendant; that defendant then caused the roof and gable end to be destroyed when plaintiff's clerk and sub-lessee were sleeping therein. And the testimony of said Hittel tended to show the conduct of defendant prior to the pulling down of said store, and his threats about pulling it down; and thereupon said plaintiff rested his cause.

The defendant, on his part, called as witnesses, Z. Chandler, Allan Shelden, G. D. Hill, and John Heffron, whose testimony tended to show, that the plaintiff was not rightfully in the possession of said store at the time of his ejectment; that his right to the occupancy was dependent on the defendant's wish to rebuild; that defendant had reserved that right, and before tearing down said store had notified said plaintiff that the defendant was about to rebuild, and that plaintiff must leave the store. The defendant thereupon rested his cause.

The Circuit Judge charged the jury, upon the question of damages, as follows:

1st. If the plaintiff is entitled to recover, he can only recover his actual damages if the jury find that the defendant, in doing the acts complained of, acted without malice and in good faith, under the belief that he had a legal right to the possession of the store, and to tear it down, and that, in determining the question of damages, they should not take into consideration the value of the good will of the place, or the plaintiff's probable profits.

2d. That if the jury find for the plaintiff, and find that the defendant, in tearing down the store, acted in good faith, and under an honest belief that he had a legal right to do so, that then the plaintiff can only recover his actual damages; and in determining them, the jury must confine themselves to the expenses of repairs after the first tearing off the roof, his loss of time and expense of moving, with the loss occasioned by the interruption of his business during the time of his removal, together with the difference, if any, between the rent paid and the fair rental value of the store for the year. And in determining this, the jury will take into consideration all the facts and circumstances of the case.

To this charge the plaintiff excepted, and judgment having been rendered in his favor for $ 100 only, the case came up for review upon the several exceptions thus taken.

Judgment reversed, with costs to the plaintiff, and a new trial granted.

C. I. Walker, for plaintiff in error, cited:

1. To show that "good will" and the injury thereto is a proper element in the damages to which plaintiff was entitled: 15 Ves. 224; 17 Ves. 346; 5 Russ. 29; 6 Beav. 276; Jac., 607; 1 Hoff. Ch., 69; 4 Sandf. Ch., 380; 4 Paige 480; Coll. on Part., § 162; Story on Part., §§ 99, 100.

2. That, irrespective of the question of good will, it was both proper and necessary to prove the value and extent of plaintiff's business, before and after the trespass, for the purpose of showing the extent of the damage caused by the trespass: Evans' Pothier, 159-162; 3 La. An., 332; 4 Mart., N. S., 107; 9 La. An., 273; 3 La. An., 44; 1 T. Raym., 77; 11 Price 19; 20 E. L. & E., 410; 9 Wend. 325; 17 Wend. 71; 7 Hill 61; 35 Barb. 17; 7 Cush. 516; 13 How. 344; 36 Penn. 360; 3 E. L. & E., 497; 22 Barb. 278; 9 Exch. 341; 3 Barb. 424; 16 N. Y., 489; 11 Ill. 616; 18 Vt. 620; 6 Mich. 356; 2 Stark. 106; 9 Bing. 68; 28 E. L. & E., 335; 10 N. Y., 489; 13 How. 101; 1 Blatch. 211; 8 Pick. 351; 13 How. 363; 8 Q. B., 779; 4 Moore 12; 2 Bing. N. C., 281; 6 Bing. N. C., 212; 3 Duer 406; 5 Duer 559; 6 Duer 315; 5 Ohio St., 594; 23 Wend. 425.

3. That the charge was erroneous: Chandler v. Allison, 10 Mich. 474; and cases above cited.

Jerome & Swift and A. B. Maynard, for defendant in error, cited:

1. To show that the questions were inadmissible: 16 N. Y., 489; 12 Wis. 313; 11 Ill. 613; 19 Geo. 416; 15 Ind. 499; 13 Gray 429; 38 Me. 361; 16 Barb. 386; 3 Mich. 63; 36 Barb. 31; 7 Hill 61; 13 How. 307; 7 Cush. 5, 16; 6 N. Y., 85; 21 Wend. 342; 9 Exch. 341; 6 H. & N., 210; 9 C. B., 632; 10 Cush. 177; 22 Geo. 269; 5 Denio 306; 13 Gray 481; 4 C. B., 322; 6 H. &. N., 914; 32 Barb. 530; 1 How. 35; 13 How. 101; 21 Pick. 378; 11 Barb. 368; 29 Conn. 479; 2 Wis. 427; 3 E. D. Smith, 144; 29 Ala. 318; 14 Ala. 69; 17 Ala. 408; 5 Ohio St., 594; 6 Pet. 282; 6 Hill 522; 4 Barb. 261; 6 Barb. 423; 5 Duer 64; 1 Duer 342; 8 N. Y., 115; 1 Hilt. 39, 420.

2. That the averment in the declaration did not warrant proof of loss of profits, if otherwise admissible: 2 Pars. on Cont., 453; 1 Mass. 47; 13 Barb. 183; 12 Wend. 64; 4 Q. B., 493; 14 Wend. 159; 16 Johns. 122; 25 Ill. 86; 31 Mo. 117; 11 Ind. 522; 32 Me. 378; 47 Me. 419; 8 Barr 479.

3. That the exceptions to the charge were not well taken: 10 Wis. 388; 29 Conn. 479; 3 R. I., 88; 26 Conn. 355, 416; 7 Jones 272; 2 N. H., 135; Baldw., 138; 8 Ired. 236; 1 Barr 190; 10 Barr 145; 14 Penn. 96; 1 W. & S., 13; 13 How. 363; 6 Pet. 282; 21 Wend. 144; 21 How. 202.

OPINION

Christiancy J.:

When this cause was formerly before us (Chandler v. Allison, 10 Mich. 460), one of the questions involved was, whether Allison, the plaintiff, was rightfully in possession of the store at the time the trespass was committed, or whether his right of possession was dependent upon Chandler's election to rebuild, and ceased when that election was made; and one of the grounds upon which the judgment in that case was reversed, was, the rejection of evidence tending to show that Allison's right of possession was thus qualified. But as the case now appears before us upon exceptions taken on the new trial, the finding of the jury, whether right or wrong--no exception having been taken to the evidence or the charge upon this point--requires us to treat this question, so far as we are now to consider the case, as settled in favor of the plaintiff; and the defendant must be considered as a trespasser, entering upon the premises and tearing down the store while in the rightful possession of the plaintiff, under a lease for a term which would not expire till the first day of May following.

The only question presented by the present bill of exceptions and not already disposed of by our former decision, is the question of damages; and in this action of trespass (as parties are under no necessity of protecting themselves by contract against trespasses), the question of damages is to be treated in all respects as it would have been, had the trespass been committed by a party between whom and the plaintiff the relation of landlord and tenant did not exist; except so far as the good faith of the defendant, and the absence of malice on his part, might preclude the plaintiff from the recovery of damages of a punitory and exemplary character, beyond the amount which would compensate the actual loss. ...