Lewis v. Arnold
| Decision Date | 27 August 1856 |
| Parties | LEWIS v. ARNOLD. |
| Court | Virginia Supreme Court |
(Absent LEE, J.)
1. N is the lessee of L of a salt property the rent of which is reserved in salt. N in July sells to A all his salt then on hand, or which he shall make before the 1st of the next January, except what may become due to L for rent. A sends his boat early in December to N's wharf for a load of the salt and the salt is put on the boat; but after the boat is loaded and whilst the boatman is fixing his oars to start, L comes to the place and forbids him to take the salt away saying he has a landlord's warrant or would get one, to take the salt for rent. Soon afterwards the deputy sheriff comes also and forbids the boatman removing the salt, saying he had a landlord's warrant or notice, though he does not appear to have had such a warrant; whereupon the boatman leaves the boat, and L takes possession of it and sends it down the river, and it is wrecked. In trover by A against L HELD:
1. The salt having been delivered by N to A's boatman and by him received and put into his boat, it was A's salt.
2. The boatman had no authority to abandon the salt to L.
2. Upon a judgment in an action for a tort depending when the act Code, ch. 177, § 14, p. 673, went into operation, it is proper to charge interest from the date of the verdict. [a1]
3. Upon appeal from a judgment rendered for more than the amount of damages laid in the declaration, the appellate court may correct and affirm the judgment.
This was an action in the Circuit court of Kanawha county instituted in April 1848, by Enos S. Arnold against John D. Lewis. The declaration contained five counts, four of which were in case, and the fifth in trover; and the damages were laid at $800. The defendant appeared and demurred to the declaration and each count thereof, and also pleaded " not guilty:" And the court sustained the demurrer to the second count, but overruled it as to the others.
The object of the suit was to recover the value of a parcel of salt which the plaintiff claimed to have purchased of George Neville, and of which possession was taken by Lewis. On the trial the plaintiff introduced in evidence a lease from Lewis to Scott & Neville, bearing date on the 24th of July 1844, by which he leased to them a salt property on the Kanawha river, for six years from its date, reserving an annual rent of seven thousand five hundred bushels of salt, payable quarterly. He also introduced a deed bearing date the 17th of July 1846, by which Scott, with the assent of Lewis, assigned his interest in the lease to Neville, who undertook to pay the rent reserved to Lewis, and also to pay Scott two thousand barrels of salt in certain payments of five hundred barrels each, and also to pay the debts of the partnership due in Virginia. He also introduced an agreement under seal, bearing date the 22d of July 1846, between Neville and himself, by which Neville contracted to sell to him all the salt Neville then had on hand at his furnace, supposed to be about eight hundred barrels, and all the salt he should make at said furnace until the first day of the next January; except that after Neville has delivered the eight hundred barrels of salt to Arnold, he may in the next place deliver the five hundred barrels then due to Scott, after which he was to deliver to Arnold all the salt made at his furnace up to the first of January 1847, (except what may become due to Lewis for rent,) the said salt to be of first quality, well packed in merchantable barrels, weighed, inspected according to law, and delivered at the salt yard of said Neville. And Arnold was to pay twelve and a half cents per bushel for the salt, and settlements were to be made on the 1st of November and the 1st of January, when he was to give his notes at ninety days for the amount found due on these settlements.
The plaintiff also introduced as a witness James Howery, a flat boat steersman, who stated that early in December 1846 he was employed by the plaintiff to take plaintiff's flat boat to Neville's furnace, and there load it with salt and take it to market for the plaintiff. That in loading said boat for plaintiff he was engaged three days, and finished it on the evening of the third day. That after he had finished loading the salt and was preparing his oars to start down the river with it, Lewis came to the landing and forbade him to take the salt away, saying he had a landlord's warrant, or would get one, to take the salt for rent. That soon afterwards Robert H. Early, a deputy sheriff for Kanawha county, came also to said landing and forbade him from removing said salt so loaded as aforesaid, stating that he had a landlord's warrant or notice, or something of that kind. That at this time as well as when Lewis was there, the witness was on said boat preparing his oars to start as aforesaid, and in consequence of what was said by the sheriff witness left the boat; and it was then taken possession of by some hands employed by the defendant for the purpose, taken away, and accidentally sunk by them. Witness also stated that Arnold had paid him for his services in loading the boat. The plaintiff also introduced evidence as to the value of salt at the time.
When the plaintiff had introduced his evidence the defendant demurred to it: And the jury having found a verdict for the plaintiff for eight hundred and thirty-three dollars and forty-nine cents damages, subject to the opinion of the court on the demurrer to evidence, the court afterwards rendered a judgment in his favor for that sum, with legal interest thereon from the 10th day of November 1852, the date of the verdict, until paid. Whereupon Lewis applied to this court for a supersedeas, which was allowed.
Fry, for the appellant, insisted:
1st. That the whole of the salt made by Neville was not sold to Arnold; but that there was an express reservation of so much as was necessary to pay the rent reserved to Lewis. And that upon the claim by Lewis of the salt loaded on Arnold's boat it had been abandoned by the latter; and had not been claimed for two years. That Arnold therefore could not recover for the salt as his property.
2d. That the damages claimed in the declaration being but eight hundred dollars, and the judgment having been rendered for eight hundred and thirty-three dollars and forty-nine cents, this was error.
3d. That it was error to render a judgment for interest. That the action having been brought and pending when the act authorizing a judgment for interest on a tort, that act did not apply to the case. That this was not a clerical error. Bent v. Patten, 1 Rand. 25, Campton v. Cline, 5 Gratt. 137-70, show that it was error to give a judgment for interest on damages. He referred to Brough v. Shanks, 5 Leigh 598; Gibson v. Governor for & c. 11 Leigh 600; Commonwealth v. Winstons, 5 Rand. 546, 562. That this being a pending suit, it is excepted out of the act, Code, ch. 216, § 1, 2, p. 800, by the operation of the act, ch. 16, § 18, p. 101; and should be excepted out of the act, ch. 177, § 14, p. 673. He referred to The Commonwealth v. Hewitt, 2 Hen. & Munf. 181; Elliott v. Lyell, 3 Call 269, marg. and especially to the opinion of Roane, J. and the cases he there cites; Couch v. Jeffries, 4 Burr. R. 2460. And he insisted that neither this or the error in rendering a judgment for more than the damages laid in the declaration, could be corrected under the act, Code, ch. 171, § 5, p. 681. That this act was in substance the same as the act of 1819, 1 Rev. Code, ch. 128, § 108, 109, p. 512, 513; and that the cases before cited show that these errors could not be corrected under the act of 1819. As to the case of Hepburn v. Dundas, supra 219, the point was not made, nor was the bearing of the different provisions in the Code considered.
McComas and B. H. Smith, for the appellee, insisted:
1st. That on a demurrer to evidence the proof was certainly sufficient to prove a delivery of possession of the salt by Neville to Arnold; and that there was no intention to abandon the possession of, or the right to, the salt. The boatman supposing that the sheriff had authority to take possession of it, went off the boat to inform his employer of what was doing; but certainly he never intended to give up the boat on which Lewis had no claim of any kind.
2d. That the act, Code, ch. 177, § 14, p. 673, directs that in all cases thereafter, in which a verdict is rendered not allowing interest, the sum thereby found shall bear interest, and the judgment shall be accordingly. And they referred to the case of Hepburn v. Dundas, supra 219.
3d. That as to the excess of the judgment over the amount of the damages laid in the declaration, the judgment might be corrected in that respect and affirmed. Code, ch. 171, § 5, 6, p. 681.
The full delivery of the salt in controversy by Neville or his agents, to Howery, the person authorized by Arnold to receive it, is clearly established by the testimony of Howery. Possession of the salt was acquired, and its removal from the demised premises into the boat of Arnold, effected in an open and public manner; Howery, according to his statement, having been engaged three days in loading the boat with it. The inference is irresistible that it was delivered by Neville, in pursuance of the written agreement between him and Arnold of the 22d of July 1846. This agreement was thus completely executed, so far as the salt in question was concerned, and nothing remained to be done in order to perfect the transfer of full ownership in it.
It is true that in this agreement there is full recognition by Arnold of the relation of landlord and tenant subsisting between Lewis and Neville, and an express exception out of the contract by the...
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