Chandler v. Chandler

• Decision Date: 14 October 1862
• Citation: Chandler v. Chandler, 10 Mich. 460 (Mich. 1862)
• Court: Michigan Supreme Court
• Parties: Zachariah Chandler v. John H. Allison

10 Mich. 460

Zachariah Chandler v. John H. Allison

Supreme Court of Michigan

October 14, 1862

Heard July 15, 1862 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne Circuit.

Allison brought suit against Chandler, and declared in trespass as follows:

"For that the said defendant, on the fourth day of August, 1860, and on divers other days and times between that day and the time of commencing this suit, with force and arms broke into and entered a certain store of the plaintiff, situated and being in the city of Detroit, and county of Wayne aforesaid, and known as number one hundred and seventy-six, on the south side of Jefferson avenue, in said city of Detroit, and then and there forced off, broke to pieces, and utterly destroyed the roof of said store, and also during the time aforesaid forced away and broke to pieces a large portion of the brick wall of said store, and thereby rendered the same untenantable and uninhabitable. By means of which said several premises, he, the said plaintiff, during all the time aforesaid, was not only greatly disturbed and annoyed in the peaceable possession of the said store of the said plaintiff, but also he, the said plaintiff, was during all that time hindered and prevented from carrying on his lawful and necessary business as a merchant in said city, engaged in selling watches, jewelry and silver ware, to wit, at Wayne county aforesaid.

"And, also, for that the said defendant, on the 22d day of August, 1860, with force and arms, broke and entered into a certain other store of the said plaintiff, situated and being on the south side of Jefferson avenue, in the city of Detroit, and county of Wayne aforesaid, the same being known as No. 176, on said Jefferson avenue, Detroit, and then and there ejected and expelled, put out and removed the said plaintiff from the possession, use, occupation and enjoyment of the said store, and kept and continued him so ejected, expelled, put out and amoved for a long space of time, to wit: from thence hitherto, whereby the said plaintiff, for and during all that time, lost and was deprived of the use and benefit of his said store, to wit: at Wayne county aforesaid. And other wrongs to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace and dignity of the State of Michigan."

The defendant pleaded the general issue, with notice that he should prove on the trial, "that for many years, to wit: ten years previous to the commencement of this suit, the defendant had and ever since has been the owner in fee simple of the premises described in the plaintiff's declaration: that previous and up to the 1st of August, 1860, said plaintiff had been in possession of said premises under a lease from and as tenant of said defendant: that on or before that day said plaintiff's right to the possession of said premises, as such tenant, had come to an end by the expiration of said lease; that said plaintiff, upon demand of said defendant, had wrongfully refused to deliver up possession of said premises to said defendant; that said defendant, having duly notified said plaintiff that he had made a contract for the rebuilding of the store mentioned in said declaration, and was about to demolish said old store and rebuild a new one in its place, and requiring him to give up possession of said premises, rightfully, but without force or violence, entered upon the roof of said store, and removed a part of the side wall thereof, but without injury to the person or property of said plaintiff--which are the same trespasses complained of in said declaration; and any damage which said plaintiff thereby sustained was in his own wrong, and through his own fault and wrongful refusal and neglect to leave said premises."

The cause coming on for trial, the plaintiff was sworn as a witness, and testified:

That in August, 1860, he was occupying the store number 176, Jefferson avenue, in the city of Detroit, which was owned by the defendant; that he had commenced occupying under the defendant on the first day of May, 1854, by virtue of a verbal lease from defendant for one year, at a rent of $ 900 per year, payable at the end of each quarter; that defendant told him that he might occupy as long as he wanted it and paid the rent; that he occupied until 1860 under this arrangement, and that there was no new contract after May 1st, 1854.

Witness further gave testimony tending to show that he had a conversation with defendant in the fall of 1859, in which the latter spoke about the rent of the store, and said he talked of raising it after the 1st of May, 1860; that defendant then said that he would let plaintiff know by the 1st of February, 1860. Allan Shelden, the defendant's agent, called on the plaintiff and presented a bill for quarter's rent then due, and informed plaintiff that his rent, after May 1st, 1860, would be $ 1,000 per year, and plaintiff then asked Shelden how many years he could have it at that rate, and he replied that he did not know.

The plaintiff's counsel then asked the witness, if, after this notice from Shelden, he made any repairs on said building; if so, to what amount? Which question was objected to, but the objection overruled, and the witness testified that he expended about one hundred dollars in repairs: that he continued occupying said store till about the twenty-fourth day of August, 1860, and that he paid rent for the quarter ending August 1st, 1860, at the rate of $ 900 per annum; the bill presented by defendant's agent being for $ 225.

The plaintiff's counsel then showed to the witness a written notice from defendant to witness, dated August 4th, 1860, by which the defendant notified the plaintiff that, on Tuesday next following said date, the defendant would commence the demolition of the store occupied by the plaintiff, and witness testified that he received said notice on said August 4th, 1860.

Witness then testified that on the 15th day of August, 1860, he found a gang of men on the store, tearing off the roof, and he caused them to be arrested; that the plaintiff occupied the first and third stories of the store, and that the second story was underlet by him to one Gates, and the basement to one Heffron.

The witness was then asked by plaintiff's counsel what rent was paid by them, said Gates and Heffron. Which question was objected to as immaterial and incompetent under the plaintiff's declaration. The court overruled the objection, and the witness testified that Gates paid $ 150 per year to him, and Heffron $ 100 per year.

The witness was then asked whether he was put to any expense, and if so, how much, in repairing said roof after the said first attempt to demolish said store. Which question was also objected to, but allowed, and the witness testified that on the 21st day of August, 1860, a gang of eight men entered upon the roof of said store, and tore off the roof, pushed off the gable end, and did other damage to said building; and that in consequence said store became untenantable; that he could not longer occupy it, and that he left said store on or about August 23d or 24th, 1860.

The counsel for plaintiff then asked the witness if he hired another store; to which question the counsel for the defendant then and there objected, as being wholly immaterial under the issue, and under the plaintiff's declaration in this cause. But the court overruled the objection, and the witness testified that he then hired another store, known as 198 Jefferson avenue, which was the best store he could then obtain.

The counsel for the plaintiff then asked the witness how the store, so hired by him, compared as a place of business with the one from which he removed. And under objection, he testified that the new store was not as good a place for business as the old one; that it was not so much of a thoroughfare, being so much farther from Woodward avenue; that it was not so good for his business, which was that of a jeweler, gold pen making and watch repairing, of which the last item formed an important part.

The counsel for defendant then cross-examined the said witness, and on such cross-examination he testified, that he first heard of defendant's intention to rebuild in the street, but could not say at what time; that said defendant said nothing whatever to him in the fall of 1859 about his rebuilding said store.

The witness was then asked by the defendant's counsel whether he had a conversation with the defendant in the spring of 1860, about his rebuilding said store, and if so, did defendant inform him that he might rebuild said store?

To which question the plaintiff's counsel objected, as not being proper cross-examination; and the court sustained the objection.

The witness further testified on said cross-examination, that prior to February 1st, 1860, he had a conversation with Shelden, defendant's agent, in regard to defendant's rebuilding said store; that in the early part of winter, and as he thinks about the middle of December, he went to see Mr. Shelden, to obtain information as to whether defendant intended rebuilding, as he had heard such a report; that Shelden told him he knew nothing of it; that defendant was then at Washington. But witness does not know whether Shelden told him that, if he wished to know, he had better write to Mr. Chandler; that Shelden may have said so; that at the conversation with Shelden, February 1st, 1860, nothing whatever was said by either party about defendant's rebuilding, and nothing was then said by Shelden of defendant's reserving any right to rebuild.

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