Sharp v. Kinsman

• Decision Date: 07 October 1882
• Parties: SHARP v. KINSMAN.
• Court: South Carolina Supreme Court

18 S.C. 108

SHARP

v.KINSMAN.

Supreme Court of South Carolina.

Oct. 7th, 1882.

1. An order refusing a motion for non-suit not disturbed, no error of law being shown.

2. An error in a charge is immaterial where the jury are subsequently told not to consider the matter embraced within such instruction.

3. The charge in this case held to be a charge on facts.

4. When a tenant holds over after the expiration of his lease, the landlord has no right to take the law into his own hands and eject the tenant without legal process.

5. But if the tenant is wholly out of possession, leaving on the land an immature crop, the landlord may enter the premises and appropriate the crop without the aid of legal process.

6. The question of damages is exclusively a matter for the jury, and the Circuit judge erred in intimating his opinion thereon.

7. In action by tenant against landlord for damages in entering upon the leased premises, seizing the crop and carrying it off, a balance due by the tenant for rent cannot be asserted as a counter-claim.

Before THOMSON, J., Charleston, June, 1880.

This was an action by William Sharp against Henry W. Kinsman, commenced January 14th, 1880. The facts of the case are stated in the opinion. The presiding judge sustained a demurrer to the counter-claim, overruled a motion for nonsuit, and charged the jury as follows:

The plaintiff says that the defendant, Kinsman, on the 5th, 6th and 7th January, 1880, forcibly broke into and entered lands of the plaintiff. He claims that he is still the owner of the land. The man who rents land for a year, is entitled to the possession of it for a year, and I presume that he made this statement—that the land was his—meaning for a year. He then says that on a certain farm on Charleston Neck, the said farm being in possession of the plaintiff, and without the leave of the plaintiff, the said owner did forcibly enter and carry away the vegetables of the plaintiff, and otherwise injure the premises of the plaintiff, to the damage of $1,000. Now, what does the defendant say to that? The defendant says that the plaintiff rented about twenty acres of this farm. The defendant says that the plaintiff rented—he does not say that Green rented with the plaintiff. The question has been made in the testimony that Green was a partner, but the defendant's statement is that he was not a partner. The defendant, on the stand, stated that the plaintiff rented twenty acres of his farm, and, with a colored man, Green, was to pay rent. Does the proof correspond with his statement in the papers?

Now the next question is, that some time previous to last Christmas, the plaintiff abandoned the place and went away, no one could tell where, and, thereupon, this defendant made arrangements with the colored man, Green, to care, tend and gather said crop, which was done by the said man, Green—he says, in other words, that finding this person gone, that he and Green made an arrangement to care and gather the crop, and I don't think the testimony, to any considerable extent, changes this. If Green was a partner, the plaintiff would have been affected by the notice that Green had, but Green not being a partner, the notice to Green is equal to no notice at all. I have put the parties where they have put themselves.

There is a good deal of disputed law here in relation to tenancy and notice to quit. Three months' notice, where there is a tenancy for a year, should be given, and the law requires that three months' notice, in writing, should be given; and, moreover, that is reciprocal, and if the tenant wants to quit, he should give the landlord three months' notice. You may consider first whether this notice has been given. It is rather a question of law to determine whether the parties are entitled to notice or not. I don't think it necessary, in the consideration of this case, to make any ruling upon the point whether or not there was any necessity to give three months' notice, because there is another question which I will submit to you, upon which I think the case should properly turn.

We will suppose, now, that notice was actually given. We will say that, for the sake of the case, that notice was required and that notice was given, and that at the end of the year he did not quit, but still remained on the place. Did that authorize the defendant to go and take the crop to pay himself? Suppose the notice was given, and that it was the duty of the man to quit, and, moreover, we may admit that he told the party that he would leave. The declaration of the tenant that he is going to leave does not constitute notice to quit. But we will assume that notice to quit was duly given, and that it was the duty of the party to leave; what was the next step on the part of the landlord? It was to have a trial before a trial justice to have him ejected— the law provides this. Did the landlord do this?

It seems that the plaintiff was there in January, February and March, and gathered turnips and carried them off. I don't know who is in possession now— possession will continue until a change of that possession occurs. About the end of the year this man returns. He was off and returned again in a few days. What was the duty of the landlord? Suppose this had been for a debt? He would have gone to an attorney to issue an attachment. What I instruct you here is, that the defendant had no right to enter that land in such manner as he says he did. His duty was simply, at the end of a year, to take out a landlord's warrant and distrain upon the crop. He could have taken out a distress warrant, or he could have instituted proceedings to have him ejected; but it seems that he went on the place and took this crop. It does not appear that he went with any malicious intent, but it was, nevertheless, an illegal act. The law does not allow a man to take another by the collar and say, leave. He is bound to use the means which the law has given him. Thus it was that here the defendant committed an error. I have no doubt that he did it unintentionally; I suppose he thought it was cheaper, and you may find no very great harm in all this except that the act was illegal.

A man, however, must bear the consequences of an illegal act, and the question of damages is a question wholly for you. A counter-claim was set up here, but this is an action for tort, and no discount can be allowed. The law is always disposed to let its hand fall upon one who is not willing to abide by its provisions. I do not know that there was any ill-feeling shown in this case. You are bound to give the plaintiff the full value of the property that was taken. The defendant says he sold it for twenty dollars. You are authorized to give that and so much more as in your opinion would prevent the defendant from doing it again. A little smart money, as it is called. I don't think this is a case for vindictive damages, but I don't think, on the other hand, that the defendant is to be wholly excused. You should give the plaintiff the value of what has been taken, and then as much more as you think the defendant should pay; not punitive damages, but such an amount as you think would prevent a similar act again. I must say that the defendant appears to be a man of unexceptional character, but he appears to have been mistaken here. If you come to the conclusion that this plaintiff was wholly out of possession, and that all the other had to do was to enter and take possession, then it would go very far in mitigation of damages, but it would not justify him in taking the crop, even if he was entitled to full...