Lee v. Boise Development Co., Ltd.

• Decision Date: 16 March 1912
• Citation: 21 Idaho 461,122 P. 851
• Parties: DUCK LEE et al., Respondents, v. BOISE DEVELOPMENT CO., LTD., et al., Appellants
• Court: Idaho Supreme Court

122 P. 851

21 Idaho 461

DUCK LEE et al., Respondents, v. BOISE DEVELOPMENT CO., LTD., et al., Appellants

Supreme Court of Idaho

March 16, 1912

PLEADINGS-DAMAGES - GENERAL-SPECIAL-MEASURE OF-NONSUIT-INTEREST IN REAL ESTATE-CHINESE ALIENS-PUBLIC POLICY-TREATY WITH CHINA-INSTRUCTIONS.

(Syllabus by the court.)

1. Under the allegations of the cross-complaint, only general damages could be recovered by the cross-complainants.

2. General damages are such as the law implies and presumes to have occurred from the wrong complained of.

3. Special damages are such as actually result from the commission of a wrong, but are not such a necessary result as will be implied by law.

4. Held, under the pleadings that loss of money paid for labor in grading streets, etc., and for advertising town lots for sale could not be recovered under the allegations of the cross-complaint.

5. Held, that the court did not err in sustaining respondent's motion for a nonsuit on the cross-complaint as there was no evi- dence of the rental value of the premises occupied by plaintiffs, from October 15th to November 10th, 1910.

6. Under the treaty of the United States with China, citizens of the Chinese Empire residing either permanently or temporarily in the United States are granted the same rights, privileges immunities and exemptions as are enjoyed by citizens and subjects of the most favored nation.

7. Any person who is present at the commission of a trespass encouraging or inciting the same, is liable as a principal.

8. Held, that the court did not err in giving certain instructions and in refusing to give certain instructions requested by the defendants.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.

Action to recover damages for trespass and destruction of property. Judgment for the plaintiffs. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

Smead, Elliott & Healy, for Appellants.

As to the offer to show loss of money paid to labor hired to make the proposed improvements on the premises, the exact question is treated in Holden v. Lake Co., 53 N.H. 552.

It is the policy of the law to allow damages to be estimated by a jury, even though the exact amount cannot be accurately ascertained. (1 Sutherland on Damages, sec. 70; Gilbert v. Kennedy, 22 Mich. 116; Cosfriff v. Miller, 10 Wyo. 190, 98 Am. St. 977, 68 P. 206.)

"One violating his contract should not be permitted entirely to escape liability because the amount of damages he has caused is uncertain." (Malone v. Weill, 67 A.D. 169, 73 N.Y.S. 700; Trust Co. v. O'Brien, 143 N.Y. 284, 38 N.E. 266.)

It is provided by statute that Mongolian aliens can hold no interest in real estate. (Rev. Codes, secs. 2609, 2610; Buckley v. Fox, 8 Idaho 248, 67 P. 659.)

D. D. Williams, and J. J. McCue, for Respondents.

Special damages are such as actually result from the commission of the wrong, but are not such a necessary result that they will be implied by law. (13 Cyc. 13.)

When the law does not necessarily imply that the plaintiff sustained the damages by the act complained of, it is essential to the validity of the declaration that the resulting damages should be shown with particularity, and when the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then in order to prevent surprise on the defendant which might otherwise ensue at the trial the plaintiff must state the particular damage which he has sustained, or he will not be permitted to give evidence of it. (Nunan v. San Francisco, 38 Cal. 690; Spencer v. Railroad Co., 21 Minn. 362; Brady v. Cassidy, 9 Misc. 107, 29 N.Y.S. 45; Parsons v. Sutton, 66 N.Y. 92-98; Cushing v. Seymour, 30 Minn. 301, 15 N.W. 249; City of Pueblo v. Griffin, 10 Colo. 366, 15 P. 616; Tarr v. O. S. L. Ry., 14 Idaho 192, 125 Am. St. 151, 93 P. 957.)

Under a general allegation of damage the plaintiff may prove and recover only general damages. (Root v. Railway Co., 20 Mont. 356, 51 P. 155; Harris v. Finberg, 46 Tex. 80; Gumb v. Twenty-third St. R. R. Co., 114 N.Y. 411, 21 N.E. 993; Gamble v. Mullen, 74 Iowa 99, 36 N.W. 909.)

We believe it has never been seriously contended that aliens, whether Mongolians or others, cannot use and occupy lands and buildings in the United States under leases and the courts have generally upheld them in their rights. (Devlin on the Treaty Power, sec. 217; Gandolfo v. Hartman, 49 F. 181, 16 L. R. A. 277; Fraser v. McConway, 82 F. 257; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.)

Any person present at the commission of a trespass, encouraging or inciting the same or who approves the same, is liable as principal. (2 Cooley on Torts, 213, note, 214.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was brought to recover for the wrongful and unlawful entry on certain lands alleged to have been leased by the plaintiffs and the destruction of certain crops growing on said land and for tearing down and destroying the dwelling-house of the plaintiffs situated on said premises, and the destruction and conversion of certain personal property, which damage is alleged to amount to $ 1,500, and judgment is prayed for that amount.

The defendants answered the plaintiffs by denying many of the material allegations thereof, and also filed a cross-complaint, wherein it is alleged, among other things, that on the 27th day of July, 1910, A. R. Smith, one of the defendants, purchased the premises referred to of Mary E. Ridenbaugh, and thereafter sold the same to the Boise Development Company, a corporation, defendant; that plaintiffs held said land under a verbal lease with Mrs. Ridenbaugh; that under said lease the plaintiffs were notified to harvest their crops by September 1st, 1910, and deliver possession of said premises to the Boise Development Company; that plaintiffs neglected and refused to do so; that it was the object and purpose of said Development Company to construct streets, alleys, sidewalks, curbings and grade said lands and to lay same off in town lots for the purpose of sale thereof, and building thereon, and that plaintiffs were fully informed of that fact; that the said company commenced work on said premises and on October 12, 1910, served written notice on the plaintiffs to remove from and vacate said premises within three days, which they, refused to do, and continued in possession until the 10th of November, 1910, and continued to obstruct the work carried on by said defendants; that all of said acts of the plaintiffs were done with willful intent to delay and damage defendants; that the sheds and buildings on said premises were disreputable in appearance and filthy and unsanitary as to condition, and rendered it impossible for the defendants to display said property to prospective purchasers or to improve said property so as to stimulate the sale thereof; that by reason of such obstructions the said company has been unable to use its employees and those in its service to advantage, and has been greatly damaged in the sum of $ 5,000, and prays for judgment for that sum.

The plaintiffs answered said cross-complaint, putting in issue all the material allegations thereof. Upon the issues thus made the cause was tried by the court with a jury and a verdict was returned in favor of the plaintiffs in the sum of $ 1,100, and judgment was entered for that amount on said verdict. Thereafter the plaintiffs remitted all of said judgment in excess of $ 750, and consented that the judgment be reduced to $ 750. Said judgment was entered on March 21, 1911. The appeal is from the judgment, and was taken on November 3, 1911, more than sixty days after the entry of judgment.

Several errors are assigned in appellants' brief.

(1) The first involves the action of the court in rejecting certain evidence offered by defendants. The appellants introduced a civil engineer as a witness on their behalf and were proceeding to examine him in regard to the construction work in the way of streets, alleys, road, grading, etc., which had been done by the defendants on said tract of land, and that evidence was objected to by respondents' counsel on the ground that such evidence was not a matter of defense, and on the further ground that the cross-complaint did not state facts sufficient to state a cause of action against the plaintiffs. On the first ground stated, the court overruled said objection and held that said question was merely preliminary. The second objection was also overruled and the court held that the cross-complaint did state a cause of action, but...