Rank v. Rank

• Decision Date: 21 May 1847
• Citation: 5 Pa. 211
• Parties: RANK <I>v.</I> RANK.
• Court: Pennsylvania Supreme Court

Page 211

5 Pa. 211

RANK v. RANK.

Supreme Court of Pennsylvania.

May 10, 1847.

May 21, 1847.

May 10.

IN error from the District Court of Lancaster.

Mathiott and Amwake, for plaintiff in error.—The damages were special, and as these are not claimed in the declaration, there could be no recovery; Briszee v. Maybee, 21 Wend. 144; Buford v. Fannen, 1 Bay. 273; 1 Chit. Pl. 332; Davis v. Oswell, 7 Car. & Pay. 804. A joint owner cannot maintain trover against his joint tenant. It is founded on the right of possession; hence there must be a severance or partition, and then the joint ownership ceases; Lowthorp v. Smith, 1 Heyw. 255; 1 Chit. 155.

Long, contrà.—The landlord's right to the straw is settled by Craig v. Dale, 1 Watts & Serg. 509; Iddings v. Nagle, 2 Watts & Serg. 22. Trover lies for the detention, and subsequent repossession is immaterial; Murray v. Burling, 10 Johns. Rep. 172; or is but a mitigation of damages; 4 Watts, 418; 3 Watts, 334.

May 21. BURNSIDE, J.

This action is trover for three hundred and fifty bushels of wheat in the straw, cut and unthrashed, and one hundred bushels of rye in the straw, cut and unthrashed.

The plaintiff below gave evidence that he farmed the plantation of the defendant, who is now the plaintiff in error, on shares or halves; that he cut and hauled the wheat and rye and put it in the defendant's barn; that when he wanted to thrash it the defendant had the barn locked, and refused to permit him. Some of the grain was destroyed by the fowls of the defendant. He had contracted to sell his grain in the beginning of winter at a high price. When he got liberty to thrash it, the market had fallen in price.

1. The first error assigned is to the evidence of Giles Carpenter, (a witness on the part of the plaintiff,) under the pleadings. The narr. was a single count in trover. He proved the price of grain in December, and that he had contracted to sell his grain when it was one dollar and fifty cents a bushel. The next month it fell to one dollar and ten cents, and gradually continued to decline. We all think this evidence was pertinent and proper. The proper period for estimating the damages in an action of trover, is the time of the conversion; 3 Campb. 477. The jury may fix the damages at any subsequent period, in their discretion; 2 Leigh, N. P. 1500.

2. The second error assigned is, that the court allowed the plaintiff to give evidence of the value of the straw. The action was for grain in the straw. This evidence did no injury to the defendant. He kept the whole of the straw, and whether he had a right to do so depended on his contract as proved.

3. The third error assigned, is to the answer to the points put by the plaintiff and the defendant.

The counsel for the plaintiff then requested the court to instruct the jury:

"1. If by the contract entered into between the plaintiff and defendant for the farming of the land, upon which the grain mentioned in the declaration filed in this case was raised, it was agreed that the defendant was to have one-half of the grain raised on the farm, and nothing was said with regard to the straw, then the plaintiff is entitled to recover in this action the value of the straw, detained by the defendant."

To this the court answered:

"The law is so settled; and as the proof in this case is, that the contract between the parties was, that the plaintiff rented the defendant's farm on the shares, for the half; this would accordingly entitle him to one-half of the straw as well as one-half of the grain."

The other points put by the plaintiff embraced no general principle, and were answered in the affirmative.

We see no error in these answers. In the case of a lease in general terms for a certain rent, the tenant is entitled to the straw as well as the grain; so if the rent, or a proportion of it be payable in grain, to be delivered in the bushel; Iddings v. Nagle, 2 Watts & Serg. 25. Straw is a constituent part of the way-going crop; Craig v. Dale, 1 Watts & Serg. 509. Unless, therefore, the return which the landlord is to receive for the land, necessarily includes the straw, or there is an express stipulation that he shall have the straw, or that it shall not be taken and used by the tenant off the farm; the tenant is entitled to it, and may dispose of it as he pleases; Iddings v. Nagle, 2 Watts & Serg. 22.

The following points were put by the defendant:

"1. This is an action of trover, and the declaration contains no allegation of special damages. The plaintiff, therefore, can claim no other damages than for the value of the goods, or for any injury which is the necessary result of the conversion; and as the goods were delivered to the plaintiff uninjured before the trial, he is entitled to no more than nominal damages, because the plaintiff has taken upon himself to accept the goods without imposing any condition on the defendant.

"2. The damages sought to be recovered do not arise from actual injury done to the property, or the actual and necessary consequence of the conversion, and ought not to be allowed to go to the jury, for want of an allegation of special damage in the declaration.

"3. In trover, the value of the property, at the time of the demand with interest, or other compensation, is the measure of damages; consequential damages are not recoverable, and if...