Weber v. Vernon
| Decision Date | 11 December 1899 |
| Citation | 45 A. 537,18 Del. 359 |
| Court | Delaware Superior Court |
| Parties | FREDERICK E. WEBER v. EDGAR R. VERNON |
Superior Court, New Castle County, Nov. Term, 1899.
ACTION ON THE CASE (No. 128, May Term, 1899).
Verdict for plaintiff for $ 66.77.
William F. Kurtz for plaintiff.
Julian C. Walker and Sylvester D. Townsend for defendant.
OPINION
SPRUANCE, J., charging the jury:
Gentlemen of the jury:--This action is brought to recover damages for maliciously taking an unreasonable distress for rent in arrear; for the loss of the use of and injury to certain property distrained for rent; for the use of certain property distrained for rent, whereby the same was injured; for using and disposing of the milk of certain cows distrained for rent; and for maliciously, and without reasonable or probable cause, suing out and prosecuting an attachment for rent growing due, and seizing and attaching certain property thereunder.
A distress will lie for rent in arrear without any prior demand of payment. The distraint may be made by the landlord personally or by his baliff--who is not required to be a public officer, and if he is a public officer, he is to be regarded in the same manner as if he was a private person, and the landlord is responsible for his acts in the course of his employment.
The landlord or bailiff making the distress may suffer the property distrained to remain at large on the premises or may impound it on the premises or in any other convenient place in the same county.
If a reasonable distress is made in a lawful manner for rent in arrear--it is a lawful act, and however malicious may have been the motive or feelings of the defendant toward the plaintiff, he is not liable in an action for making a malicious distress.
Wells vs Parsons, 3 Del. 505, 3 Harr. 505.
A statute of this State provides that "any person taking an unreasonable distress, shall answer in damages to the party injured, to be recovered in an action on the case."
Whether the distress is or is not unreasonable does not depend upon whether the person taking the distress was or was not an experienced person, or whether he did or did not act in good faith, or to the best of his judgment, but whether the goods taken were or were not a reasonable amount to satisfy the rent and expenses--taking into consideration the price they might be reasonably expected to bring at a public sale for cash by a constable or sheriff,--the officers designated by law to sell the same at public sale.
Nor does the law hold the party making the distress to such exactness as to be liable in case there is any small excess in the value of the goods beyond the amount needed to satisfy the rent and expenses.
An unreasonable distress is such that a reasonable and fairly intelligent man--taking into consideration the mode of sale (if the goods should come to sale) would know to be materially more than enough to satisfy the rent and expenses, and such excess should be of a substantial and not a trifling character.
If the distress was unreasonable in amount and made without malice, on the part of the defendant, the plaintiff is entitled to recover such damage as he has sustained by reason of the taking of such unreasonable distraint.
If the distress was unreasonable in amount and such unreasonable amount was taken maliciously by the defendant, with intent to harass, oppress and injure the plaintiff, then the plaintiff may recover such exemplary damages as the jury, under all the circumstances of the case, may deem just and reasonable.
A person taking and holding goods as a distress is bound to use such reasonable care as a prudent and reasonable man would use in regard to his own property of like character. If the property be cattle and horses they should be fed and watered and be given such attention as may be required to keep them in as good condition as when distrained--but the person taking and holding goods distrained is not bound to exercise extraordinary care of them.
If milch cows be distrained they should be milked--as without this they would suffer and be injured.
If the person holding cows so distrained uses or sells the milk he is liable for its...
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