Brugman v. Burr

• Decision Date: 23 September 1890
• Citation: 46 N.W. 644,30 Neb. 406
• Parties: HENRY BRUGMAN v. C. C. BURR
• Court: Nebraska Supreme Court

46 N.W. 644

30 Neb. 406

HENRY BRUGMAN v. C. C. BURR

Supreme Court of Nebraska

September 23, 1890

ERROR to the district court for Lancaster county. Tried below before FIELD, J.

AFFIRMED.

J. C Johnston, and J. E. Philpott, for plaintiff in error.

Samuel J. Tuttle, contra, cited: Code, secs. 1011, 1012; Berggren v. R. Co., 23 Neb. 620.

COBB CH. J. NORVAL, J., concurs. MAXWELL, J., dissents as to first point of syllabus.

OPINION

COBB, CH. J.

This cause comes to this court on error from the district court of Lancaster county. The plaintiff in that court in and by his petition alleged the making, execution, and delivery to him by the defendant, of three, several promissory notes, two for $ 200 each, and one for $ 210, dated February 8, 1886, and due, respectively, April 8, May 8, and June 8, 1886, and demanding judgment in the sum of $ 576, with interest.

The defendant, in and by his amended answer, paying no attention to the allegations of the petition, nor troubling himself as to any distinction between defense, set-off, and counter-claim, alleged that on the 28th day of December, 1883, the plaintiff, by his deed, duly executed and delivered, leased to the defendant lot 14, in block 42, in Lincoln, for a term commencing the 1st day of January, 1884, and ending December 31, 1889, for the consideration of $ 8,100, to be paid by the defendant to the plaintiff in installments of $ 135 on the first business day of each and every month thereafter; that the consideration for the said notes sued on is for a part of the said installments so to be paid for, and on said rent and no other; that on the 30th day of April, 1886, the defendant then being in the quiet and peaceable possession and enjoyment of the said lot, and the tenements thereon, under the covenants of said lease, and then and there being engaged in the carrying on a general retail business in hardware, woodenware, tinware, and cutlery, and the plaintiff then and there desiring and intending to build an addition to the rear east end of the building on said lot, the building so occupied by the defendant, the defendant, at the instance and request of the plaintiff, executed and delivered, by his certain writing on the back of said lease, his certain deed of release, as follows, to-wit:

"For value received, I hereby relinquish to C. C. Burr all my right, title, and interest in the within lease, reserving right to remove stock within fifty days from date hereof, Burr to have right to go on with improvement in meantime. April 30, 1886."

That the word "improvement" used in said release means the taking out of the rear end of said building and the construction to said building of the said addition and no other matter or thing; that the word "stock" used in said release means the defendant's said goods and chattels, then used and employed by him in his said retail business; that on or about the 4th day of May, 1886, and while the defendant was occupying the said lot and tenements thereon, and so engaged in his said business, and thereafter up to the 14th day of June, 1886, the said plaintiff, in violation of the defendant's right to the peaceable possession and quiet enjoyment of the said premises, so to occupy the same, and in disregard of the covenants of said assignment, did wrongfully, against the protest of the defendant, enter upon said premises and remove the roof on said building, and wrongfully, and against the protest of the defendant, tore to pieces and carried away the sidewalk of the immediate front of said building on the west side thereof, and did then and there dig an excavation twenty-five feet by sixteen feet, and seven feet deep, and then and there wrongfully and negligently did leave the defendant's said stock of goods exposed to the elements and exposed and subject to be stolen and carried away, and then and there for twenty days, by reason of said excavation, the defendant and his servants and the public were wholly prevented from going in and out of the front entrance and door of said building; that the defendant had a stock of goods in said building during the time of the committing of said grievances by the plaintiff, of the value of $ 3,000; that by reason of the said wrongful acts of the plaintiff, in so removing the said roof and so exposing the said goods to the elements, the said goods were rained upon and damaged in the sum of $ 600; that by reason of the said wrongful acts of the plaintiff in so exposing said goods to be feloniously stolen, without fault or negligence of the defendant, there were feloniously stolen and carried away of defendant's said stock, goods of the value of $ 100, no part of which the defendant has ever since recovered or received, to his damage in the sum of $ 100; that by reason of the plaintiff's so wrongfully removing the said sidewalk, and the said excavation, and so preventing said egress and ingress to the said building, through said front door, to himself, his servants, and the general public, he was, for said twenty days, wholly prevented from carrying on his said business, to his damage in the sum of $ 500; with prayer for judgment for his said damages after the taking out thereof of the amount which may be found due the plaintiff on the said notes.

The plaintiff replied to the above answer of the defendant, in which he denied that the plaintiff on the 30th day of April, or at any other time, desired or intended to build an addition to the storeroom mentioned in said counter-claim and to the rear east end thereof only, but alleged that at that time he intended and desired to repair the said storeroom in the manner in which he did so repair the same, and that it was on that account he procured the release mentioned by paying to the said defendant a full and complete consideration therefor. He denied that the new improvements mentioned in the counter-claim meant only the taking out of the east end of the building and the construction of the addition to the east end of said building as alleged; but that it was used in its ordinary sense and included all the improvements made upon said store building, or to the same as actually done and performed thereafter, as in the summer of 1886. He further denied that the said plaintiff removed the roof from said building between the 4th day of May and the 17th day of June, 1886, but alleges the fact to be that said roof was removed long after the elapsing of the fifty days mentioned in said release and not before. He admitted that before the elapsing of the said period of fifty days he did remove the said walk in front of the said store building and dug the excavation mentioned in said counter-claim, but said plaintiff further alleges that he caused said excavation to be covered with plank at his own expense, so that neither the said defendant, nor his servants, nor the public were in any manner deprived of free ingress into or egress from said store building. And the plaintiff denies each and every allegation in said counter-claim contained as to the fact and amount of damages claimed by said defendant, and alleges that if he suffered any damages whatsoever it was occasioned by his own fault and negligence, and not by the fault or wrong of the plaintiff.

There was a trial to a jury, with a verdict and judgment for the plaintiff. After unsuccessful motion for a new trial, the defendant brings the cause up on error.

Before filing his reply, the plaintiff moved the court for an order striking from the defendant's answer and counter-claim the following words: "And wrongfully and against the protest of the defendant tore to pieces and carried away the sidewalk in the immediate front of said building on the west side thereof, and did then and there dig an excavation twenty-five feet by sixteen feet, and seven feet deep." Also the following: "That by reason of the plaintiff so wrongfully removing the said sidewalk and making the said excavation, and so preventing said egress and ingress to the said building through said door to himself, his servants, and the general public, he was for said twenty days wholly prevented from carrying on his said business, to his damage in the sum of $ 500." And also the following: "And then and there for twenty days, by reason of said excavation, the defendant, and his servants, and the public were wholly prevented from going in and out of the front entrance and door of said building." Which motion was upon argument sustained and the said order passed. This order and judgment of the court constitute the first error assigned.

This assignment involves the entire answer and counter-claim of the defendant. Section 100 of the Code provides that "The defendant may set forth in his answer as many grounds of defense, counter-claim, and set-off as he may have. Each must be separately stated and numbered, and they must refer in an intelligible manner to the cause of action which they are intended to answer;" and section 101, as follows: "The counter-claim mentioned in the last section must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action."

It will be remembered that "the contract or transaction, set forth in the petition as the foundation of the plaintiff's claim," was the giving of three several promissory notes by the defendant to the plaintiff, and while it is alleged in the said answer or counter-claim that the consideration of the notes sued on was for a part of the installments of rent agreed to be paid by the defendant to the plaintiff upon the store house or building, yet, taking the whole...