Gilbert v. Kennedy

• Decision Date: 04 January 1870
• Court: Michigan Supreme Court
• Parties: Warren Gilbert v. Asa A. Kennedy

22 Mich. 117

Warren Gilbert v. Asa A. Kennedy

Supreme Court of Michigan

January 4, 1870

Heard October 19, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Lenawee circuit.

This was an action of trespass, quare clausum fregit, brought by Asa A. Kennedy in the circuit court for the county of Lenawee, against Warren Gilbert. The alleged trespass consisted in turning thirty-two head of cattle of the defendant's upon premises known as the Pitcher farm, and in the occupancy of Kennedy.

The plaintiff alleges special damage, averring that he was a drover, engaged in the business of buying and selling cattle, and buying cattle for and transporting them to New York and other eastern markets for sale, and also selling the same, and also in the business of farming; that during all the time of the trespass he owned and was possessed of a large number of neat cattle, sheep and horses, which he had purchased and intended for market, and a like number which he kept for use as such farmer; and that he depended upon and was in need of the sole and exclusive use of such pasture; all of which defendant knew. He also alleges that by reason of the trespasses, the pasture, which would otherwise have been sufficient, became and was insufficient, poor, and unfit for the suitable pasturage of his cattle, horses and sheep, and not being able to procure other proper and sufficient pasturage, and in consequence the said cattle, etc., were prevented from gaining in flesh and value, as they would have done, and lost in flesh, became poor and thin, depreciated in weight and value, and those intended for market were unfit for market sale, and those intended for use were unfit for use; that in consequence of the trespass, the plaintiff was obliged to retain, and did retain and use as pasture, for pasture of said cattle, other land which he had designed and wished to have ploughed and used for planting and raising of corn, other grain and hay. He further alleges that, before the commission of said acts and wrongs, he had bargained the undivided half of his cattle intended for market, to Isaiah Teachout, with the agreement that said cattle were to be kept on said close and certain other pasture which said Isaiah was to furnish, if this pasture should prove insufficient, and that he would have sold said cattle at a large profit but for the wrongful acts of the defendant; and on account thereof, Teachout declined to consummate the bargain and purchase the undivided half of said cattle. He further alleges that by said wrongful acts, he was prevented from purchasing divers other cattle, horses and sheep for market, and lost large gains and profits which he might have made on the purchase and sale thereof.

The defendant pleaded the general issue, and gave notice that the plaintiff had leased the premises to him to pasture thirty-five head of cattle from the first day of May, 1868, to the first of July, 1868, and from thence the whole pasture to the end of the season; and that he entered into said close in accordance with said terms of leasing.

The cause was tried by a jury; the controversy mainly arising upon the measure of damages for the injury suffered by the plaintiff. The circuit judge charged:

"The plaintiff claims, in his declaration in substance, that on the 28th day of April, 1868, he was in the quiet and peaceable possession of certain premises, known as the Pitcher farm, situated in the township of Rome, in this county; that he was the owner of sixty head of cattle, which he intended to pasture on said farm during that season, and to sell when they were fit for market for fat cattle during the season; that he placed said cattle on said farm April 30, 1868; that said farm would afford sufficient pasture to keep said sixty cattle in good condition, and that said cattle would increase in weight a large amount by pasturing on said farm during the summer of 1868; that the said defendant, wrongfully and unlawfully, and without the leave or license and against the will of the said plaintiff, placed on said farm thirty-two head of his own cattle and kept them there until after the commencement of this suit --ten head April 28th, and twenty-two head May 4, 1868; that the cattle of the defendant, so placed and kept on said farm, in addition to the cattle of the said plaintiff, cut up and consumed the herbage and grass growing upon said farm to that extent that the plaintiff's said cattle shrank and fell off in weight to a large amount, and that the plaintiff's cattle failed to gain and increase in weight to a large amount, and as much as they would have gained if the defendant had not turned his cattle on to said premises; that by reason of said shrinkage and failure to increase in weight and flesh, the quality of said cattle was diminished in value to a large amount; that by the said wrongful acts of the said defendant, the said farm was damaged for pasture for the balance of the season, to a large amount; that he was compelled to take some of said cattle off from said farm and pasture them on another farm, to prevent further shrinkage, which was worth a large amount.

"The defendant pleads the general issue, and gives notice that he will prove, on the trial, that the plaintiff, before the 28th day of April, 1868, leased to the defendant the pasture on said farm, from the first day of May until the 1st day of July, for thirty-five head of cattle, and the whole of said pasture thenceforth until the 1st day of December, 1868.

"If you believe, from the evidence, that the defendant turned his cattle onto said premises wrongfully, and without the consent of the plaintiff, and that on the 28th day of April the plaintiff owned sixty head of cattle, which he intended to pasture on said premises, the plaintiff is entitled to recover in this action against the defendant the damages he has sustained, as follows:

"1st. The value of the amount said cattle would have gained and increased in weight, if they had had the use of the whole of the pasture on said premises up to the commencement of this suit, or up to time they were sold, if sold before the commencement of this suit.

"2d. The value of the pasture on his own farm for the time any of said cattle were pastured on said farm before the commencement of this suit.

"3d. The damages done to the said Pitcher farm, by being overfed by the defendant's cattle, before the commencement of this suit.

"4th. The value of the amount of shrinkage of said cattle up to the commencement of this suit, or until said cattle were sold, if sold before the commencement of this suit, if said shrinkage was caused by the defendant's cattle being placed on said farm, provided the plaintiff used reasonable diligence to procure other pasture.

"5th. The loss, if any, which the plaintiff sustained in the quality of said cattle being diminished in value by shrinkage to a failure to gain and increase in flesh."

To each of which charges and instructions by the said circuit judge the defendant excepted.

The jury found a verdict for the plaintiff, and assessed his damages at the sum of eight hundred and seventy-five dollars; and the judgment entered thereon the defendant below brings into this court by writ of error.

Judgment reversed, with costs and a new trial awarded.

C. A. Stacy and Andrew Howell, for plaintiff in error:

Profits.--The court had no right to allow the defendant in error to introduce testimony to prove prospective profits as damages: State v. Smith, 31 Mo. 566; Gardner v. Field, 1 Gray 151; St. Peter's Church v. Beach, 26 Conn. 355; Warren v. Cole, 15 Mich. 265. A verdict, therefore, for the profits which might have been made on the goods wrongfully taken, in addition to their value, is erroneous: Button v. Collins, 12 Cal. 457. The market value of the property, and not its value to the plaintiff, is the measure of damages: Gray v. Stearns, 28 Vt. 1. A charge to the jury that the defendant must make the plaintiff good for all the actual injury sustained by him, resulting directly and naturally therefrom, was erroneous: Oviatt v. Pond, 29 Conn. 479. That the rule is applicable to torts as well as to contracts, was held by our Supreme Court: Warren v. Cole, 15 Mich. 274. And its applicability to actions for torts upon real estate was fully recognized by the Supreme Court of New York: Walrath v. Redfield, 11 Barb., S. C. R., 369; Affirmed, 18 N. Y., 457.

In actions upon contract, it is well settled that the party complaining of a breach of contract, can only recover the damages necessarily resulting from such breach, and he cannot conduct himself in such a manner as to make the damages necessarily burdensome: 11 Barb. 373; 2 Greenlf. Ev., sec. 256; Wilson v. Martin, 1 Denio 602. The same rule is applicable to torts where there has been no willful injury to the rights of another.

Damages.--Where successive actions may be brought for a continuous wrong, as in the case of continued trespass upon land, the damages in each suit are very properly limited to those sustained by the plaintiff at its commencement: Caldwell v. Murphy, 1 Duer 233; Bathishill v. Reed, 37 Eng. L. and Eq., 317; Smith v. Peet, 9 Exch. 161; Sedgwick on Dam. (139), n. 1 (109); Blunt v. McCormick, 1 Denio 283; Cole v. Sprowl, 35 Me. 161; Town of Troy v. Cheshire R. R. Co., 3 Fost. N. H., 83; Robinson v. Bland, 2 Burr. 1077 and 1086; Fettretch v. Leamy, 9 Bos. 510.

In this case the plaintiff was allowed to prove by his witnesses double damages. In his proof first showing the value of the pasture consumed by the defendant's cattle before the 24th of June, and then showing the decreased value of the pasturage after the 24th of June, by reason of its being fed before the 24th of June by...