Lambert v. Robinson

• Decision Date: 23 June 1894
• Parties: LAMBERT v. ROBINSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 34

37 N.E. 753

LAMBERT v. ROBINSON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 23, 1894

COUNSEL

George A. Bruce and M.F. Farrell, for plaintiff.

William A. Morse, for defendants.

OPINION

LATHROP, J.

The declaration in this case is for breaking and entering the plaintiff's close; and it alleges, further, in the same count, an assault upon the plaintiff by striking him on the head a violent blow with a dangerous weapon, and also assaults upon the plaintiff's wife and daughter. The answer is a general denial, and an amended answer alleges, if the defendants "did assault in the manner alleged by the plaintiff, that said assault was justified by the acts of the plaintiff." No question of pleading is raised in the case, and we are not called upon to determine whether the alleged assaults upon the plaintiff and his wife and daughter can be considered as distinct charges or injuries, or merely as matters in aggravation of damages. See Sampson v Henry, 13 Pick. 36; Eames v. Prentice, 8 Cush. 337. That the defendant, in an action for an assault, if he seeks to justify the assault, must set up such defense in his answer, and that a general denial only is not enough, is well settled. See Hathaway v. Hatchard, 160 Mass. 297, 35 N.E. 857, and cases cited. To say that the assault was justified by the acts of the plaintiff seems very insufficient; but, as no objection was taken to the form of the answer, we do not dwell upon it.

It appears from the bill of exceptions that the plaintiff had hired of the defendants certain articles of furniture, for which he had paid as rent the sum of $5, and promised to pay the further sum of $1 a week, until the sums paid should amount to the sum of $31.29, and such further sums as might be added to this amount by the plaintiff, at which time the rent was to cease, and the articles become the absolute property of the plaintiff. The agreement, which was in writing and signed by the plaintiff, described him as of 79 Broadway, Chelsea, and contained these clauses: "But, in the case of failure to pay said rent as aforesaid, the said C.H. Robinson & Co., or their agents, may, without demand or notice, or being deemed guilty of any trespass or tort, and without thereby rendering themselves liable to refund any sums received by them as rent aforesaid, enter any house or place where said articles may be, and take possession of and remove said articles therefrom." "And I further agree that, so long as said rent shall be payable as aforesaid, I will not injure, sell, mortgage, or relet the said articles, or remove the same from above-mentioned place; and that, in case of failure to pay the rent, I will, on demand, return said articles to said C.H. Robinson & Co., or their legal representatives." It is very clear that a breach of the clause last cited by a removal of the furniture gave the defendants no right to enter upon the land of the plaintiff, or to retake the furniture. The right to enter and remove the furniture is given only by the clause first cited, and this applies only in case of a failure to pay rent. There is no doubt that the license to enter given by the plaintiff to the defendants was irrevocable. Heath v. Randall, 4 Cush. 195; McNeal v. Emerson, 15 Gray, 384; Smith v. Hale, 158 Mass. 178, 33 N.E. 493.

The only question of law raised in the case arises upon the defendants' request to the court to rule, as matter of law, that, upon the evidence, the entry of the defendants was reasonable and proper, and that the plaintiff could not maintain this action. This request was refused. The case was submitted to the jury, with full instructions, not excepted to, except so far as inconsistent with the above request; but the bill of exceptions does not set forth what instructions were given. Soon after the defendants' servants entered upon the plaintiff's premises, they attempted to remove the furniture, and were resisted by the plaintiff, and it was during this resistance that the assault complained of occurred. The defendants' servants did not succeed in obtaining the furniture, and it is still in the possession of the plaintiff. It does not clearly appear from the exceptions that any rent was due at the time of the entry. The statement is: "It was agreed that there was still a balance unpaid upon said contract." This may refer to the time of the entry, or to the time of the trial. The exceptions tend also to show that the entry was made because the plaintiff had removed the goods, and because of the failure of the plaintiff to settle the account when demanded. This may, and probably does, mean that, after the removal of the furniture, the defendants demanded a settlement of the entire account. But there is nothing in the contract which gives the right to the defendants to demand a settlement of the entire account upon a removal, or to enter and remove the furniture, if the plaintiff paid the rent which he agreed to pay. The case, however, has been argued by both sides upon the supposition that there was a right of entry for failure on the part of the plaintiff to pay rent, and we proceed to consider the case upon this supposition.

We are met at the outset with the question, what is the rule of law applicable to the conduct of a person who has a right to enter upon the land of another? The plaintiff contends that the defendants had no right to use personal violence when resisted; that they could not enforce their rights by a...